0120081546
05-22-2008
Larry C. Huebner, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Larry C. Huebner,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081546
Agency No. ARCEOMAHA07NOV04686
DECISION
Complainant filed a timely appeal with this Commission from a
final agency decision (FAD) dated January 25, 2008, 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 based on his age (60) when he was denied attendance
at crane recertification training on October 24, 2006, and June 20,
2007, and as a result of this lost opportunities for overtime work as
a crane operator. He retired in January, 2008.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). This time limit shall be extended
when for reasons considered sufficient by the agency or Commission.
29 C.F.R. � 1614.105(a)(2).
The FAD dismissed the complaint on the grounds that complainant failed
to timely initiate contact with an EEO counselor. It reasoned that
he was denied attendance at training on October 24, 2006, and June 20,
2007, but did not initiate contact with an EEO counselor until October
15, 2007,1 beyond the 45 day time limit to do so. According to the
counselor's report, a discussion with a co-worker in October 2007, who
felt complainant may have an EEO case, prompted him to contact an EEO
counselor. The details of the conversation were not elaborated upon in
the record. On appeal, complainant explains that he delayed filing an
EEO because he hoped that if he kept asking to take the recertification
class, he would not have to file an EEO complaint. A review of the record
reveals that complainant believed from the beginning that the denial of
training was improper. Complainant has not given adequate justification
to extend the deadline to initiate EEO contact. Accordingly, the FAD
is affirmed.2
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 22, 2008
__________________
Date
1 The FAD contained a typographical error, indicating that the initial
EEO counselor contact was on October 25, 2007.
2 The FAD also dismissed the complaint on other procedural grounds.
As we affirm the dismissal of the complaint for failure to timely initiate
EEO counseling, we need not address the other grounds for dismissal.
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0120081546
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081546