01a30560
03-13-2003
Robert W. Ayers, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Robert W. Ayers v. Department of the Army
01A30560
March 13, 2003
.
Robert W. Ayers,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30560
Agency No. ARCEWILFO02AUG0005
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.
The record reflects that complainant was a GS-09 Park Ranger at the
agency's Philpott Lake Project near Bassett, Virginia until his retirement
on June 1, 2002.
On July 15, 2002, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful. In his
formal EEO complaint filed on August 29, 2002, complainant alleged that
he was subjected to discrimination on the bases of sex and age.
In its final decision dated October 2 , 2002, the agency determined
that complainant's complaint was comprised of three claims, identified
in the following fashion:
(a) complainant was denied compressed work schedule on November 9,
2001, while a female coworker was allowed to work on this schedule;
(b) On November 30, 2001, he was not given a performance award while
younger employees received them; and
(c) from 1995 until approximately March 1, 2002, he was verbally
harassed and intimidated by his supervisor while younger employees were
not harassed and intimidated.
The agency dismissed the complaint for untimely EEO Counselor contact.
Specifically, the agency found that complainant's initial EEO Counselor
contact occurred more than forty-five days after the dates of the alleged
incidents identified in claims (a) - (c).
The record indicates that the alleged discriminatory events occurred
during the period November 9, 2001 through March 1, 2002, but that
complainant did not initiate contact with an EEO Counselor until July
15, 2002, which is beyond the forty-five (45) day limitation period. In
his formal complaint, complainant stated that he did not pursue the EEO
complaint process earlier because of fear of reprisal from his supervisor.
The Commission has determined that fear of reprisal, without more,
will not toll the applicable EEO time limitations. Croft v. Department
of the Army, EEOC Request No. 05970699 (August 1, 1997). Moreover, on
appeal, complainant appears to argue that he did not develop a reasonable
suspicion of unlawful employment discrimination until July 11, 2002, when
his former supervisor refused to discuss the matters that were ultimately
the subject of his EEO complaint. Further, complainant asserts on
appeal that the alleged discriminatory actions identified in claim (c)
occurred beyond March 1, 2002, up until the date of his retirement on
June 1, 2002. The record reflects, however, that complainant went on
annual leave on April 5, 2002, and did not thereafter return to work
prior to his retirement.
In summary, 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 dismissing
complainant's complaint is AFFIRMED.
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
March 13, 2003
__________________
Date