0120112332
08-18-2011
John M. Alden, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
John M. Alden,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120112332
Agency No. 110001501208
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 3, 2011, dismissing his 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Intelligence Specialist at the Agency’s Office of Naval Intelligence
facility in Washington, DC.
On February 16, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of disability
(perceived mental) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when on January 9, 2009 he
was terminated from his position despite a Personal Security Review
Board decision to restore his security clearance; in February 2008
he was stripped of his security clearance; in December 2007 efforts
were made to revoke his security clearance; on October 1, 2007 he was
suspended; and in the fall of 2005 an objection was made to a proposal
he submitted. Complainant also alleged other acts of harassment during
his employment.
The Commission notes that Complainant appealed his removal to the Merit
Systems Protection Board (MSPB). Complainant withdrew his appeal on March
16, 2009 and the MSPB issued a decision on March 18, 2009 dismissing
the appeal with prejudice. Complainant contacted an EEO counselor
on November 18, 2010 regarding the instant complaint. The Agency
dismissed the matter for untimely EEO counselor contact and the instant
appeal followed. In his appeal, Complainant basically argues that he did
not know he could raise a basis of perceived mental disability until
he consulted with his new attorney. Further, Complainant argues that
because the MSPB dismissed the appeal, the Agency should process the
matter as a mixed complaint. In response to Complainant’s appeal,
the Agency noted that Complainant had received EEO training and was
represented by an attorney when he filed his MSPB appeal.
ANALYSIS AND FINDINGS
The record discloses that the alleged last discriminatory event,
Complainant’s termination, occurred on January 9, 2009, but Complainant
did not initiate contact with an EEO Counselor until November 18,
2010, 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. Complainant withdrew his appeal from the MSPB, and that is the
reason for its dismissal. There was no determination that the matter was
not within the MSPB’s jurisdiction. Thus, the Agency was not required
to process the matter as an “unmixed” complaint. Additionally,
the discovery of a new basis does not give rise to a new complaint or
extension of time limits.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 18, 2011
__________________
Date
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0120112332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112332