0120083594
12-04-2008
Marvin Bunche, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Marvin Bunche,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083594
Agency No. 200P06912008102451
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 3, 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 and for failure to state a claim.
Complainant alleged discrimination on the basis of reprisal for previous
EEO activity when, in November 2007, he found that his application
packages for a Licensed Vocational Nurse position had been lost;
on January 15, 2008, he was informed he was not selected for either
Licensed Vocational Nurse position for which he had applied; and when
he became aware that his medical records had been flagged.
The agency dismissed the claims related to his applications and
non-selection for untimely EEO counselor contact, finding that complainant
did not contact a counselor until April 4, 2008. The agency provided a
sworn statement from the EEO counselor indicating that she had not spoken
with complainant about his claims prior to that date. With respect to
complainant's medical records, the agency dismissed that claim because
it concerned complainant's status as a patient of the agency, not as an
employee, and as such, was not within the jurisdiction of EEO complaint
process.
Upon review, the Commission finds that the complaint was properly
dismissed for untimely EEO counselor contact and for failure to state
a claim. The record discloses that the alleged discriminatory event
(non-selection) occurred on January 15, 2008, but complainant did not
initiate contact with an EEO Counselor until April 4, 2008, which is
beyond the forty-five (45) 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. The record also
supports the agency's assertion that the issue concerning complainant's
medical records related to his status as a patient and not an employee,
and therefore fails to state a claim under the employment discrimination
laws.
Accordingly, 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 (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
December 4, 2008
__________________
Date
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0120083594
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120083594