0120072760
09-10-2007
Michael A. Furlow, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Michael A. Furlow,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120072760
Agency No. 0762381012
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 6, 2007, 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).
During the period in question, complainant was employed as a Utility-Man
on an agency ship. On November 22, 2006, complainant initiated contact
with an equal employment opportunity (EEO) Counselor alleging that the
agency discriminated against him on the basis of race (Caucasian) when
it did not rate and rank him amongst the best qualified for an Assistant
Cook position. On February 13, 2007, complainant filed a formal EEO
complaint alleging the same.
In its March 6 final decision, the agency dismissed complainant's
complaint for untimely EEO Counselor contact. The agency stated that the
complainant had knowledge, even if only constructive knowledge, of the
45-day time-frame for EEO contact provided in 29 C.F.R. �� 1614.105(a)(1)
and .107(a)(2) because he attended New Employee Orientation on November
15, 2005. The agency provided a declaration under penalty of perjury
from an EEO Specialist who conducted the Orientation and stated that it
covered EEO Awareness and complainant attended; as well as an Orientation
roster containing complainant's signature. Complainant stated that he
asked his supervisor what was his recourse regarding his non-selection
and the supervisor replied "nothing," and that he did not learn of his
EEO rights until November 2006.
The record discloses that, in April 2006, complainant applied for an
Assistant Cook position; on June 20, 2006, the agency made its selections
for the Assistant Cook position, which were made effective June 26,
2006; and, in a memorandum dated July 2, 2006, the agency disclosed the
fourteen candidates it selected.
In pertinent part, the EEOC Regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO 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. Here, we find that complainant's initial
EEO contact is beyond the 45-day limitation period and he 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
September 10, 2007
__________________
Date
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0120072760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120072760