0120123502
01-31-2013
Federico Dimas, Jr., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Federico Dimas, Jr.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120123502
Agency No. DEA-2012-00903
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 16, 2012, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an IT Security Specialist at the Agency's Drug Enforcement Administration facility in Sterling, Virginia.
On August 3, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of national origin, age, and in reprisal for prior protected EEO activity when:
on June 21, 2012, he received written notification that his March 21, 2012 grievance on a suspension, which was effective February 27, 2012, was upheld by Deputy Chief of Operations.1
On August 16, 2012, the Agency issued a final decision. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency stated that on February 22, 2012, Complainant was served with written notification that he would be suspended for one day, effective February 27, 2012, for "Conduct Unbecoming a DEA Employee." However, Complainant did not initiate contact with an EEO Counselor on that matter until June 21, 2012, beyond the 45-day time limit set by the regulations. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R.� 1614.105 (a) (1) provides that an aggrieved person must initiate contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, mandates dismissal of complaints for untimeliness. 29 C.F.R. � 1614.107(a)(2).
The record discloses that the alleged discriminatory event (the suspension) occurred on February 27, 2012, 2012, but Complainant did not initiate contact with an EEO Counselor until June 21, 2012, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. While Complainant attempts to extend the timeframe for contesting his suspension through the EEO process by asserting that the filing of his grievance tolled the relevant time period, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Moreover, a challenge to the grievance decision itself would be an impermissible use of the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise concerns regarding the conduct of union business is in the grievance forum, not the EEO process.
Accordingly, the Agency's final decision dismissing Complainant's individual formal complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 31, 2013
__________________
Date
1 In that portion of the formal complaint form requesting identification of the bases raised, Complainant identified "class complaint," as well as the three bases identified above. However, a fair reading of the formal complaint, as well as the related EEO counseling report, reveals that Complainant did not intend to file a class complaint. We further note that, on appeal, Complainant does not assert he was raising a class claim or raise any challenge to the Agency's dismissal decision on that basis.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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