0120082930
08-27-2008
Robert A. McCarthy, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Robert A. McCarthy,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120082930
Agency No. HS-07-ICE-002342
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 30, 2008, dismissing his complaint of
unlawful employment discrimination in violation of 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. 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.
On September 12, 2007, complainant contacted an EEO Counselor and alleged
that he was subjected to discrimination on the bases of race (Caucasian),
age (64), and reprisal for prior protected EEO activity when:
1. since May 2007, management did not permit him to review written
allegations made about him;
2. on June 29, 2007, his designation as the Contracting Officer's
Technical Representative (COTR) for a Task Order for guard services in
Pennsylvania was terminated;
3. on or about August 9, 2007, he became aware that another employee
had accused him of referring to her as a "Black bitch."
Informal efforts to resolve that matter were unsuccessful and complainant
filed a formal complaint November 15, 2007. The agency dismissed claims
1 and 2 in the complaint for untimely EEO Counselor contact. The agency
dismissed claim 3 for failure to state a claim on the grounds that claim
constituted an impermissible collateral attack on another EEO matter
for which no remedial action would be available, because the agency is
legally obligated to investigate claims of harassment.
EEOC Regulation 29 C.F.R.� 1614.105 (a) (1) requires that an aggrieved
person must initiate contact with a Counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personal
action, within 45 days of the effective date of the action. Section
1614. 107(a) (2) provides that an agency shall dismiss a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
The record discloses that the alleged discriminatory events in claims 1
and 2 occurred in May 2007 and on June 29, 2007, but complainant did not
initiate contact with an EEO Counselor on that matter until September
12, 2007, which is beyond the forty-five (45) day limitation period.
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 final decision to dismiss claims 1
and 2 in complainant's complaint is AFFIRMED.
Claim 3 in complainant's complaint pertains to an allegation made
by another employee against complainant. Claim 3 fails to state a
claim upon which relief may be granted. The Commission notes that the
agency is legally obligated to investigate claims of harassment among
its workforce. The Commission finds the agency's decision to dismiss
claim 3 in the complaint proper. Accordingly, the final agency decision
is AFFIRMED.
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
August 27, 2008
Date
2
0120082930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120082930