0120093269
12-04-2009
Ronnie Lawson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ronnie Lawson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093269
Agency No. ARHOOD09MAY01956
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated June 25, 2009, 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. In his
complaint, complainant alleged that he was subjected to discrimination
based on his race (black) when:
1. effective January 6, 2008, he was not selected for the position of
Supervisory Logistics Management Specialist, GS-14, in Fort Hood, Texas,
advertised under vacancy announcement WTEF07885304, and
2. effective November 10, 2008, he was not selected for the position of
Supervisory Logistics Management Specialist, GS-14, serving as Chief,
Security Plans and Operations Division in Fort Hood, Texas, advertised
under vacancy announcement WTEF08794330.1
Complainant wrote that he learned in January 2008 who was selected
for the first position. He learned on or about February 2, 2009, or
sometime prior, who was selected for the second position. Complainant
wrote that during the month of February 2009 and up to March 9, 2009,
the selectee for the second position constantly uttered statements that
he was pre-selected.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). The FAD dismissed the complaint on the
grounds that complainant did not initiate contact until May 7, 2009,
beyond the 45 calendar day time limit to do so.
Complainant explained, with elaboration on appeal, that he delayed
contacting an EEO counselor because he learned on April 14, 2009, that
the agency was conducting a 15-6 investigation of prohibited personnel
practices, command climate, recruitment and hiring practices, and abusive
language in the workplace, which he believed would result in a favorable
remedy for him.
Complainant has not given adequate justification for delaying contact with
an EEO counselor. By the time he learned of the 15-6 investigation,
the 45 calendar day time limit already passed. Moreover, such an
investigation does not toll the time limit for a complainant to initiate
EEO contact. Hosford v. Department of Veterans Affairs, EEOC Request
No. 05890038 (June 9, 1989).
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 4, 2009
__________________
Date
1 We have changed the wording of complainant's claim from the FAD to
more precisely set forth the claim.
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0120093269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093269