01a32498_r
09-08-2003
Roger D. Bennett, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Roger D. Bennett v. Department of Veterans Affairs
01A32498
September 8, 2003
.
Roger D. Bennett,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32498
Agency No. 200L-0502-2002101092
DECISION
Upon review, the Commission finds that the agency's decision dated
September 26, 2002, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged discrimination based on sex (male)
and in reprisal for prior union activities when on December 18, 2001, he
was issued a notice of Termination of Grade Retention effective October
25, 2001. The record indicates that on October 7, 1999, complainant was
previously issued a Notification of Position Change notifying him that
his position would be changed to a lower grade from Addiction Therapist,
GS-101-7, to Psychology Technician, GS-181-5, effective October 24, 1999.
Therein, complainant was informed that he would retain his current grade
for a period of two years, and thereafter, he would be entitled to pay
retention until his position's basic rate of pay equals or exceeds his
retained rate.
After a review of the record, the Commission finds that the alleged
incident occurred on October 25, 2001, the date when complainant's grade
retention was effectively terminated. Complainant contacted an EEO
Counselor with regard to the alleged matter on December 21, 2001, which
was beyond the 45-day time limit set by the regulations. Complainant
indicated that he timely contacted an EEO Counselor after he received
the notice of December 18, 2001. However, the Commission finds that
the notice of December 18, 2001, merely reiterated information about the
termination of complainant's grade retention, which was already provided
to him in the prior notice of October 7, 1999. Although complainant
filed a grievance, as well as an unfair labor practice charge and an
appeal to the Office of Personnel Management, concerning the alleged
matter, the Commission has held that the internal appeal of an agency
action does not toll the running of EEO time limitations. See Hosford
v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989).
On appeal, complainant fails to present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision is AFFIRMED.<1>
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
September 8, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency dismissed the complaint on the basis of reprisal
for complainant's prior union activities, we need not discuss such since
its dismissal of the instant complaint was affirmed due to untimely EEO
Counselor contact.