0120082896
08-27-2008
Goldie M. Coleman, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Goldie M. Coleman,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120082896
Agency No. AAFES 08 038
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 19, 2008, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a) for untimely EEO
Counselor contact.
On January 29, 2008, complainant contacted an EEO Counselor and alleged
that she was discriminated against based on her race (African American)
and sex (female) when she was removed from her temporary promotion on
October 7, 2007. Informal efforts to resolve the matter were unsuccessful
and complainant filed a formal complaint on February 19, 2008. The agency
dismissed the complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person who believes that he/she has been discriminated against on the
basis of race, color, religion, sex, national origin, age or handicap
must consult an EEO Counselor within 45 days of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action. Section 1614.107(a)(2) of the regulations
provides that the agency shall dismiss a complaint that fails to comply
with the applicable time limits contained in 29 C.F.R. � 1614.105.
The record discloses, and complainant's formal complaint expressly states,
that the alleged discriminatory event-the termination of complainant's
temporary promotion-occurred on October 7, 2007, but that complainant
did not initiate contact with an EEO Counselor until January 29, 2008,1
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.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 27, 2008
Date
1 In her statement on appeal, complainant claims that her initial
contact with an EEO counselor was on January 18, 2008, not January 29,
as asserted by the agency. However, even January 18 was well beyond
the 45-day limitation period.
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0120082896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082896