01984482
06-07-1999
Raymond T. Maxwell, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Raymond T. Maxwell v. Department of the Treasury
01984482
June 7, 1999
Raymond T. Maxwell, )
Appellant, )
)
)
v. ) Appeal No. 01984482
) Agency No. TD-98-3113
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On May 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 10, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (White) and age (DOB 2/19/43) when:
In 1995, appellant was relocated from the District Office to the Service
Center, the agency refused to authorize his moving expenses;
In October 1995, appellant was not selected for either of two grade 11
position vacancies (Labor Relations Specialist, and Personnel Staffing
Specialist);
Although appellant was placed in the priority placement program, on May
13, 1997, he was notified that he was not selected for the position of
Supervisory Management Analyst, GS-343-12;
On December 12, 1997, appellant was notified that he was not selected
for the position of Staffing Assistant, GS-343-12;
On January 15, 1998, appellant was notified that he was not selected
for the position of Supervisory Personnel Assistant, GS-203-9/10; and
On December 8, 1997, appellant's application for Voluntary Separation
Incentive Payment program (VSIP) was denied.
The agency accepted allegation (6) for processing, and dismissed
allegations (1) through (5) pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for raising matters that were not brought to the
attention of an EEO Counselor, and were not like or related to the matters
brought to the attention of an EEO Counselor. Alternatively, the agency
dismissed allegations (1) through (3) pursuant to 29 U.S.C. �1614.107(b),
for failure to initiate contact with an EEO Counselor in a timely
manner.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
In the instant complaint, the record discloses that the incidents
identified in allegations (1) through (5) were raised for the first
time in appellant's formal complaint dated February 12, 1998. While the
Counselor's Report indicates that appellant mentioned the issue identified
in allegation (1) as background information, and alluded to other
"continuing agency actions," he received no counseling on the specific
issues identified in allegations (1) through (5). Moreover, we find
that allegations (1) through (5) are factually distinct from appellant's
allegation concerning the denial of his VSIP application, as they do
not add to or clarify allegation (6), and could not have reasonably
been expected to grow out of the investigation of that allegation.
Consequently, we find that allegations (1) through (5) were properly
dismissed pursuant to 29 U.S.C. �1614.107(b).<1> Appellant is advised,
however, that he may nonetheless use these incidents as background
information for the investigation of allegation (6).
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since we are affirming the agency's dismissal of allegations (1) through
(3) on the grounds that they were not raised during counseling, we will
not address the agency's alternative grounds for dismissal, i.e., that
they were untimely.