0120081529
05-22-2008
Oliver Blunt, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Oliver Blunt,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081529
Agency No. 084446600175
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 4, 2008, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of disability (arthritis) when:
1. Complainant was not allowed to work overtime from March 13, 2003
until his retirement on October 31, 2007.
The agency dismissed the claim for failure to state a claim and
untimeliness. The agency asserted that Complainant did not avail himself
for overtime by asking or signing up for overtime as required by Article
14 of the relevant Collective Bargaining Agreement between 2004 and 2007.
The agency found that Complainant failed to contact an EEO counselor until
the day following his retirement on October 31, 2007. The agency noted
that Complainant was aware of the time frames for filing an EEO complaint
as he had previously filed complaints on four separate occasions, and
that his complaint failed for any claim of discrimination that occurred
more than 45 days prior to the initial contact with the EEO counselor.
See 29 C.F.R. � 1614.105(a)(1).
We agree with the agency that Complainant has failed to timely contact an
EEO counselor. Complainant needed to contact an EEO counselor within 45
days of an alleged discriminatory event or personnel action. 29 C.F.R. �
1614.105(a)(1). Under the relevant Collective Bargaining Agreement,
Complainant needed to make himself available for overtime by signing up
on the Holiday Overtime Opportunity List (H/OOL). EEO Counselor's Report
Attach. 3. The General foreman who responded to the EEO Counselor's
questions stated that he reviewed the H/OOLs between 2004 and 2007
and Complainant did not sign up for overtime during that time span.
EEO Counselor's Report Para. 8.a. Thus, there is an absence of evidence
demonstrating a discrete discriminatory event against Complainant within
the 45 days prior to Complainant's initial contact with an EEO counselor.
The agency has fulfilled its burden to show a reasoned determination as
to timeliness.
The dismissal on grounds of untimeliness is affirmed.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 22, 2008
__________________
Date
1 We do not address the dismissal for failure to state a claim
because we affirm the dismissal on other grounds.
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0120081529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081529