0120091102
05-29-2009
Marlo F. Bowman, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Marlo F. Bowman,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120091102
Agency No. 200821705FAA06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 20, 2008, 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.
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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (African-American) when three Aviation
Safety Inspectors were promoted on September 9, 2001, but complainant
was not considered for the promotion.
Briefly, complainant was a General Aviation, Principal Management
Inspector (PMI), but in April or May 2001, he was reassigned to a Air
Worthiness Geographic Inspector position. In September 2001, three PMIs
were promoted to GS-14 through accretion of duties, and complainant
was not because he was no longer a PMI. Complainant was aware of the
promotions by December 30, 2001, and contacted an EEO counselor on March
11, 2002, alleging race discrimination.
A settlement agreement was reached on the matter on July 2, 2002,
whereby complainant would be given priority consideration for the next
available PMI GS-14 assignment. When the agency failed to consider
him in 2007, he filed a breach of settlement agreement claim. In EEOC
Appeal No. 0120080989 (February 29, 2008), the Commission found there
had been a breach and gave complainant the option of reinstating his
complaint from the point at which its processing ceased due to the
settlement. Complainant chose that option and the agency resumed EEO
counseling on the matter, and complainant eventually filed a formal EEO
complaint on July 23, 2008. On November 20, 2008, the agency issued its
final decision dismissing the complaint as untimely raised with the EEO
counselor and for failure to state a claim. Complainant then filed the
instant appeal.
As an initial matter, the Commission finds that complainant has stated
a viable claim of discrimination and the complaint should not have been
dismissed on that basis. The agency's argument that because complainant
was no longer an PMI he was not eligible for the promotion goes to the
merits of the claim and cannot be the basis of a dismissal prior to an
investigation and further processing.
Nonetheless, the Commission finds that complainant untimely raised the
matter with the EEO counselor. EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that 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. The EEO counselor's report indicates
that complainant stated that the promotions occurred in September 2001,
and he was aware of the alleged discriminatory event by no later than
December 30, 2001. However, it is undisputed that complainant did not
oringally initiate contact with an EEO Counselor until March 11, 2002,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint for untimely EEO counselor contact is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
May 29, 2009
__________________
Date
2
0120091102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091102