Melvin C. Porter, Complainant,v.Ambassador Randall L. Tobias, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120065286 (E.E.O.C. Feb. 16, 2007)

0120065286

02-16-2007

Melvin C. Porter, Complainant, v. Ambassador Randall L. Tobias, Administrator, Agency for International Development, Agency.


Melvin C. Porter,

Complainant,

v.

Ambassador Randall L. Tobias,

Administrator,

Agency for International Development,

Agency.

Appeal No. 01200652861

Agency No. EOP0604

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 28, 2006, 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 bases of race, sex (male), and

reprisal for prior protected EEO activity under Title VII of the Civil

Rights Act of 1964 when the appraisal committee denied his appeal to

change his "needs improvement" 2004 performance rating. 2

The record discloses that the alleged discriminatory event occurred

on July 5, 2005, but complainant did not initiate contact with an EEO

Counselor until March 27, 2006, 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. Accordingly, the agency's final

decision dismissing complainant's complaint 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

February 16, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

2 Complainant also asserts that his claims include being denied a meeting

with the committee, being refused a written statement, refused to allow

the human resources office review his appraisal, and a claim that the

committee did not comply with agency procedures and guidelines. The

Commission finds that these claims all go to the dissatisfaction with his

performance appraisal and the agency's refusal to change it. Further, the

letter complainant received, dated February 13, 2006, merely reiterates

the committee's denial of his appeals. Complainant clearly knew in July

2005 that his appraisal would not be changed.

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0120065286

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065286