0120080650
03-05-2008
John A. Johnson, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
John A. Johnson,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120080650
Agency No. 200721434FAA03
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 17, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds
that complainant's complaint was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (Post Traumatic Stress Disorder)
and age (D.O.B. 04/07/58) when after being denied leave without pay under
the Family Medical Leave Act on July 23, 2004, he was forced to resign
from his position of Senior Technical Advisor effective August 9, 2004.
The record discloses that the alleged discriminatory event occurred
on August 9, 2004, but complainant did not initiate contact with an
EEO Counselor until June 29, 2007, 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. On appeal complainant
has asserted that his first EEO contact was actually June 30, 2006,
not June 29, 2007. However, even if that were true, complainant's EEO
counselor contact is untimely. In addition, the Commission notes that
the record contains copies of letters from complainant to the agency
raising claims of discrimination concerning the instant matters. In a
letter dated August 18, 2006, complainant was given the telephone number
for contacting an EEO counselor, but complainant appeared reluctant
to utilize the information as noted in his letter of June 18, 2007,
where he stated "Please allow me to emphasize I will not be contacting
the national intake unit regarding my discrimination complaint."
We find, that complainant has failed to present any argument to justify an
extension of the applicable time limit for almost 2 years. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles
to excuse lack of diligence"); Rys v. United States Postal Service,
886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title
VII plaintiff must have diligently pursued her claim"). Accordingly, the
agency's final decision dismissing complainant's complaint 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
March 5, 2008
__________________
Date
2
0120080650
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120080650