Jay W. Hagan, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 6, 2003
01A34067_r (E.E.O.C. Oct. 6, 2003)

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.