01a55099
12-28-2005
Moses Jackson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Moses Jackson v. Department of the Army
01A55099
December 28, 2005
.
Moses Jackson,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55099
Agency No. ARJACKSONAPR08366
DECISION
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 under Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. on the bases of his race (Black), color (Black), and age
(D.O.B. August 15, 1945) when on March 1, 2005, he received a copy of an
agency letter explaining why management planned to separate complainant
from his position for not being able to pass the police agility test.
The record reflects that complainant first contacted the agency's EEO
office on August 10, 2004, with respect to his failure of the police
agility test and the agency's subsequent intent to remove him from his
position. Although complainant chose not to file a formal EEO complaint
at that time, we find that this action indicates that complainant was
aware as early as February 2004, that he failed the police agility test,
and that he would consequently be subject to removal by the agency.
Additionally, the record shows that complainant resigned from his
position, in lieu of removal or reassignment, effective May 2004.
Even viewing the date complainant's resignation became effective as the
date of the most recent discriminatory action, complaint's August 10, 2004
counselor contact is beyond the forty-five (45) day limitation period.
Complainant contends that the letter he received from the agency in
March 2005, "served as the notice to [him] of discriminatory conduct,"
however, we find that complainant's August 2004 contact belies that claim.
We also remind complainant that the Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). As complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact, the Commission affirms the agency's final decision
dismissing complainant's complaint.
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
December 28, 2005
__________________
Date