01A23620_r
07-02-2003
Mitchell G. Brodsky, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Mitchell G. Brodsky v. Department of Energy
01A23630
July 2, 2003
.
Mitchell G. Brodsky,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A23630
Agency No. 02(46)NV
DECISION
Upon review, the Commission finds that the agency's June 3, 2002 dismissal
of complainant's complaint due to untimely EEO Counselor contact is
proper, pursuant to 29 C.F.R. � 1614.105(a)(2). In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race, religion, color, age, and reprisal when, on October 11,
2001, he received a Highly Successful, instead of Outstanding, rating
in his 2001 performance appraisal, which resulted in lower monetary
performance awards. The record indicates that complainant contacted
an EEO Counselor with regard to the alleged rating on January 16, 2002,
which was beyond the 45-day time limit set by the regulations.
The agency, undisputed by complainant, stated that complainant, without
intending to initiate the EEO complaint process, first contacted an
EEO Counselor on September 13, 2001, because he believed that he
would receive a lower performance rating during his upcoming FY01
performance evaluation. The EEO Counselor, at that time, informed
complainant to contact the office once he officially was notified of his
FY01 performance rating. After receiving his FY01 performance rating,
complainant, instead, filed a grievance with the agency on October 16,
2001. The Commission has held that the internal appeal of an agency
action does not toll the running of EEO time limitations. See Hosford
v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989).
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 decision is hereby AFFIRMED.<1>
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
July 2, 2003
__________________
Date
1Although the agency dismissed the complaint
on the alternative grounds due to untimely filing of a formal complaint,
we need not discuss such in this decision since the dismissal is affirmed
due to the untimely EEO Counselor contact.