01a52090
04-25-2005
Norman M. Leader, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Norman M. Leader v. Department of Transportation
01A52090
April 25, 2005
.
Norman M. Leader,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A52090
Agency No. 2004-18276-FAA-02
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
of untimely EEO Counselor contact.
On July 12, 2004, complainant initiated contact with an EEO Counselor
and claimed that he was subjected to discrimination on the basis
of age when the Federal Aviation Administration implemented the Core
Compensation System in 1998, which limited all employees at the maximum
of their pay band to receive all future Organization Success Increase
(OSI) and Superior Contribution Increase (SCI) awards as a lump sum
payment. Complainant stated that he became aware of the impact to him on
June 30, 2004. Informal efforts to resolve the matter were unsuccessful
and complainant filed a formal complaint on September 1, 2004.
In its final decision, dated December 14 ,2004, the agency dismissed the
complaint pursuant to 29 C.F.R.� 1614.107(a)(1) for failure to state
a claim.
The agency dismissed complainant's complaint on the alternative grounds
of untimely EEO Counselor contact. The agency determined that during
EEO counseling, complainant stated that he became aware of the negative
impact of the agency's policy on June 30, 2004. The agency determined,
however, that complainant also explained that he reached the maximum of
the pay band in January 2004, and received OSI/SCI lump sum payments
with no permanent adjustments to his salary. The agency found that the
record contains a Notification of Personnel Action for OSI and group
cash awards, effective January 11, 2004. The agency concluded that
complainant's initial EEO contact of July 12, 2004, was approximately six
years after the implementation of the Core Compensation system pilot in
July 1998; approximately four years after the permanent implementation
of the compensation system in 2000; and more than forty-five days after
receiving OSI and SCI lump sum payments (in January 2004). The agency
found that complainant provided no justification for the delay in
contacting an EEO Counselor.
The Commission determines that the record supports a finding that
complainant had, or should have had, a reasonable suspicion of unlawful
employment discrimination more than forty-five days prior to his initial
EEO Counselor contact on July 12, 2004. Complainant has failed to
present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days.
Accordingly, the agency's decision to dismiss the complaint for failure
to initiate contact with an EEO Counselor in a timely fashion was proper
and is AFFIRMED.
Because we affirm the dismissal of the complaint for the reasons stated
herein, we find it unnecessary to address the alternative grounds for
dismissal.
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
April 25, 2005
__________________
Date