0120172058
06-22-2017
Kim S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kim S.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120172058
Agency No. OBD201700162
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 26, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant is a former employee, who previously worked as a Grants Monitoring Specialist at the Agency's Community Oriented Policing Services (COPS), Grants Management Division facility in Washington, DC.
On March 13, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when:
1. On an ongoing basis from 2011 until the time Complainant left the Agency on August 5, 2016, the Assistant Director (RMO1) did not grant him compensatory travel time;
2. In April 2012, RMO1 charged him with the misuse of a travel card, delayed his promotion, prohibited him from taking leave while on travel status, and directed him to meet with the travel coordinator to learn how travel arrangements were properly made;
3. From December 2015, through August 5, 2016, RMO1 forced him to do work outside of his position description;
4. In December 2015, RMO1 issued Complainant a performance review that did not reflect the additional duties he assumed in Fiscal Year 2015; and
5. On October 6, 2016, Complainant learned that he did not receive a $1,500 group award that management gave to two female colleagues with whom Complainant had developed a presentation on conflict resolution.
According to Complainant's complaint, he acknowledged that the date of the most recent incident of alleged discrimination occurred on July 27, 2016. Complainant left the Agency on August 5, 2016, and did not contact the EEO Counselor until December 2, 2016. In addition, the record shows, with regard to Claim 5, that Complainant was informed by email on October 6, 2016, that he would not be receiving a group award. He did not contact an EEO Counselor until 57 days later.
The Agency dismissed the complaint for failure to contact an EEO Counselor within the applicable time limits. The Agency found that Complainant had not acted with due diligence and had not presented a sufficient explanation or evidence to warrant an extension of the time limit for initiating EEO contact.
CONTENTIONS ON APPEAL
On appeal, Complainant restates his explanation for seeking to "toll the time period in which he was obligated to contact" the EEO Counselor. He stated that he feared retaliation, did not recall attending training, was not too clear on the regulation and disputes that he was at work during the time that the NO FEAR Act training and Anti-Harassment training was given.
ANALYSIS AND FINDINGS
The record discloses that the most recent alleged discriminatory event occurred on July 27, 2016, but Complainant did not initiate contact with an EEO Counselor until December 2, 2016, which is beyond the forty-five (45) day limitation period.
In this case, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
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.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 22, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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