01A33001_r
08-21-2003
Larry Toney, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Larry Toney v. Department of the Army
01A33001
August 21, 2003
.
Larry Toney,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33001
Agency No. ARMCCOY03FEB009
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint for untimely EEO
Counselor contact. In his complaint, complainant alleged that he was
discriminated against on the bases of race (African-American) and age
when he was not selected for the position of Heavy Mobile Equipment
Repair Inspector, WG-5803-08, as advertised on vacancy announcement
number DE00290018.
In its final decision, the agency found that complainant learned he
was not on the list of candidates being selected for the position in
mid-August 2002, but did not contact an EEO Counselor until January
17, 2003. On appeal, complainant argues that he did not realize he had
not made the best qualified list until his EEO Counselor discovered the
fact in February 2003. The record does reveal, however, that the agency
selected another applicant for the position in September 2002.
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. 29 C.F.R. � 1614.105(a)(1). The agency may dismiss claims
that fail to comply with this time limit. 29 C.F.R. � 1614.107(a)(2).
Another candidate was selected for the Heavy Mobile Equipment Repair
Inspector position in September 2002. Complainant clearly was aware
of the nonselection; he acknowledged asking management why he was not
considered for the job in September. Complainant should have contacted
an EEO Counselor within forty-five days of learning he was not selected
for the position. He has failed to justify his failure to do so.
Accordingly, the agency's dismissal is AFFIRMED.
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
August 21, 2003
__________________
Date