John B. Ruffing, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionFeb 22, 2007
0120070127 (E.E.O.C. Feb. 22, 2007)

0120070127

02-22-2007

John B. Ruffing, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


John B. Ruffing,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120070127

Agency No. CRC0601095

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 15, 2006, 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. In his

complaint, complainant alleged that he was subjected to discrimination on

the bases of age (D.O.B. 04/13/30) and reprisal for prior protected EEO

activity under an EEO statute that was unspecified in the record when he

learned in February 2005 that he was decertified as a Rehabilitation

Counselor by the Office of Workers' Compensation Programs (OWCP).

The agency dismissed the complaint for untimely EEO Counselor contact

and failure to state a claim.

The record discloses that the alleged discriminatory event occurred on

February 15, 2005, but complainant did not initiate contact with an EEO

Counselor until March 27, 2006, which is well beyond the forty-five

(45) day limitation period prescribed by regulation. Specifically,

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

On appeal, complainant has presented no persuasive arguments or evidence

warranting an extension of the time limit for initiating EEO Counselor

contact. Even if, as complainant appears to assert, it was not initially

clear to him that a final decision had been made on his decertification,

he concedes in his statement on appeal that he knew, by September 2005,

that he would not be "permitted to cure cause for de-certification and

be re-certified to work" and was "caused to be forever unable to work."

Even counting September 2005 as the triggering event, complainant's EEO

counselor contact in March 2006 was untimely.

Because we affirm the agency's dismissal for untimely EEO counselor,

the Commission will not address the agency's other grounds for dismissal

of the instant matter.

Accordingly, the agency's decision is AFFIRMED for the reasons set

forth herein.

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

February 22, 2007

__________________

Date

2

0120070127

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120070127