01A31838_r
08-21-2003
Sean Levy, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Sean Levy v. Department of the Interior
01A31838
August 21, 2003
.
Sean Levy,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A31838
Agency No. FNP-2001-051
Hearing No. 370-02-2570X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 26, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability.
In a decision dated December 4, 2002, an EEOC Administrative Judge (AJ)
dismissed claim (1) for failure to state a claim. The AJ found that
as framed by complainant, claim (1) alleges that, "shortly after my
OWCP claims was accepted, I became aware that (the agency) was going
to discriminate against me. . . ." The AJ found that claim (1) thus
failed to state a claim in that it alleged discrimination in connection
with a proposed action or preliminary step that had not yet occurred.
The AJ further found that claim (2)<1>, alleging that complainant was
constructively discharged on February 28, 1999, must be dismissed from the
hearing process, without prejudice, inasmuch as complainant has a right
to pursue relief for this claim by filing either a mixed case complaint
with the agency or an appeal with the Merit Systems Protection Board
(MSPB), and must be informed of his rights accordingly.
The agency's March 26, 2003<2> decision adopted the AJ's decision. The
agency also dismissed claim (2), pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact. The agency found that complainant
resigned effective February 28, 1999, but failed to contact an EEO
Counselor regarding his removal until more than a year later on July
19, 2000, which is beyond the 45-day limitation for initiating the
EEO process.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). We find that claim (1)
fails to state a claim because complainant has not specifically shown
how he was harmed in claim (1). The agency's dismissal is therefore
proper pursuant to 29 C.F.R. � 1614.107(a)(1).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date
of the action. The record reflects that complainant did not initiate
the EEO process regarding his separation from the agency until July
19, 2000. Complainant has not claimed that the agency erred in finding
that complainant was separated from the agency on February 28, 1999.
We therefore find the agency properly dismissed claim (2) pursuant to
29 C.F.R. � 1614.107(a)(1) for untimely EEO Counselor contact.
We therefore AFFIRM the agency's dismissal of the complaint.
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
August 21, 2003
__________________
Date
1The AJ granted complainant's motion to amend
his complaint to add this claim during the hearing process.
2This decision bears an erroneous date of March 26, 2002.