0120081792
05-09-2008
Kenneth E. Graf, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Kenneth E. Graf,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120081792
Agency No. EEODFS-07-0849-F
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 29, 2008, dismissing his formal 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On July 31, 2007, complainant contacted an EEO Counselor and claimed
that he was subjected to discrimination on the bases of sex (male) and
age (48). Informal efforts to resolve his concerns were unsuccessful,
and on September 21, 2007, he filed the instant formal complaint.
On January 29, 2008, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following three claims:
1. On March 6, and 7, 2007, the Group Manager yelled at him, pointed
at him using her middle finger;
2. On March 8, 2007, he was issued an Official letter of Reprimand; and
3. On June 22, 2007, he received an unjustifiably low rating of "Minimally
Successful" on his annual performance appraisal covering the period June
1, 2006 May 31, 2007.
The agency dismissed claims 1 and 2 in the complaint on the grounds of
untimely EEO counselor contact. The agency dismissed claim 3 on the
grounds that the matter was raised in a negotiated grievance process
prior to the filing of the formal complaint.
Claims 1 and 2
EEOC Regulation 29 C.F.R. � 1614. 105 (a) (1) provides that an aggrieved
person must contact an EEO Counselor on that matter within 45 days of the
date of alleged to be discriminatory or in the case of personnel action,
within 45 days of the effective date of the action. Section 1614.107 (a)
(2) provides that the agency shall dismiss a complaint that fails to
comply with the applicable time limits contained in � 1614.105. Section
1614.107 (a) (4) provides that the agency shall dismiss a complaint
where the complainant has raised the matter in a negotiated grievance
procedure that permits allegations of discrimination.
The record discloses that the alleged discriminatory events in claims
1 and 2 occurred on March 6, 7, and 8, 2007, but complainant did not
initiate contact with an EEO Counselor until July 31, 2007, which is
beyond the forty-five 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 asserts
that he has been the victim of harassment since he was transferred into a
specific work group, thereby rendering timely his EEO Counselor contact.
However, the record does not support a finding that any viable claim
purported occurred within forty-five days of the date that complainant
initiated EEO Counselor contact.
Claim 3
The record reflects that complainant filed a grievance under a negotiated
grievance procedure on the same matter that was raised in the subject
claim. Moreover, the record reflects that the agency has a grievance
procedure that permits claims of discrimination to be raised. The agency
properly dismissed claim 3 pursuant to 29 C.F.R. � 1614.107(a)(4).
The agency's final decision dismissing complainant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 9, 2008
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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