01A34067_r
10-06-2003
Jay W. Hagan, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Jay W. Hagan v. Department of the Army
01A34067
October 6, 2003
.
Jay W. Hagan,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34067
Agency No. ARCELOU03MARC0004
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 8, 2003, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On March 19, 2003, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
In his formal complaint, filed on May 8, 2003, complainant alleged that
he was subjected to discrimination on the basis of age (D.O.B. 9/29/49).
In a final decision dated May 8, 2003, the agency defined the claim
raised in the instant complaint in the following fashion:
on December 23, 2002, complainant was told by a Supervisory Mechanical
Engineer, Chief, Mechanical/Electrical Section and Supervisory Structural
Engineer, Chief Design Branch, that he was not transferred to another
section within the Engineering Division or to another Louisville District
Division because he was so close to retirement, no one wanted to take
him, train him and then have him leave, but on January 23, 2002, he
was informed that another co-worker was being transferred out of his
section.<1>
The agency dismissed the complaint for untimely Counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2), finding that complainant's
March 19, 2003 EEO Counselor contact was beyond the 45-day limitation
period. The agency also dismissed the complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The record supports a determination that complainant had, or should
have had a reasonable suspicion of unlawful employment discrimination on
December 23, 2002, when an agency official purportedly informed him that
he would not be transferred because he was so close to retirement that
no one wanted to train him. Complainant did not initiate contact with
an EEO Counselor until March 19, 2003, 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.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
Accordingly, the agency's dismissal of the complaint was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
October 6, 2003
__________________
Date
1On appeal, complainant argues that he did
not learn of the transfer of the co-worker until March 6, 2003, and not
on January 23, 2003, as stated by the agency. Complainant noted that
March 6, 2003, was �the date I felt the final straw had been broken.�
This disparity in dates on this issue does not affect our disposition
of this case.