Solomon E. Evans, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A34013_r (E.E.O.C. Oct. 27, 2003)

01A34013_r

10-27-2003

Solomon E. Evans, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Solomon E. Evans v. Department of the Army

01A34013

October 27, 2003

.

Solomon E. Evans,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A34013

Agency No. AREUHEID03MAR000012

DECISION

Complainant initiated contact with the agency's EEO Office on March 7,

2003. In an EEO complaint dated April 29, 2003, complainant claimed that

he was discriminated against on the bases of his race (African-American)

and in reprisal for his previous EEO activity under Title VII when:

On February 10, 2003, the new Agency/Organization Program Coordinator

for the Government Purchase Card Program (GPC) was furnished with nine

personnel to assist with program surveillance whereas complainant only

had four personnel when he was in that position.

On January 27, 2003, complainant was told to discuss concerns of Regional

Contracting Office (RCO) GPC administration with RCO management.

On or about December 17, 2002, complainant was told that he would not

be moved out of the RCO's A/OPC position.

On November 13, 2002, complainant noted that eight employees had been

assigned to work on the administration of the RCO GPC program.

On November 6, 2002, complainant was informed that additional personnel

were not available to work on the RCO GPC Program.

In October 2002, complainant generated a new DA Form 7222-1, Senior

System Civilian Evaluation Report Support Form, and his objectives were

rejected as non-quantifiable and he was instructed to create a Support

Form that contained quantifiable objectives, which complainant stated

could not be achieved due to personnel shortages.

By decision dated May 9, 2003, the agency dismissed claims 1- 2 of

the complaint on the grounds of failure to state a claim. The agency

determined that complainant did not suffer harm to a term, condition,

or privilege of his employment. The agency dismissed claims 3-6 of the

complaint on the grounds that complainant failed to initiate contact

with an EEO Counselor in a timely manner.

We find that claims 1-2 were properly dismissed pursuant to 29

C.F.R. �1614.107(a)(1) on the grounds of failure to state a claim.

With regard to claim (1), the fact that the new Agency/Organization

Program Coordinator received more personnel than complainant did

in operating the GPC does not constitute harm to a term, condition,

or privilege of complainant's employment. As for claim (2), we find

that the Colonel's instruction to complainant that he should not raise

concerns about the RCO's administration of the GPC with him, but rather

with management at the RCO did not cause complainant to suffer harm to

a term, condition, or privilege of his employment.

We find that claims 3-6 were properly dismissed pursuant to 29

C.F.R. �1614.107(a)(2) on the grounds of failure to initiate contact

with an EEO Counselor in a timely manner. The record reveals that the

alleged incidents in claims 3-6 occurred no later than December 2002,

but that complainant did not initiate contact with an EEO Counselor until

March 7, 2003, after the expiration of the 45-day limitation period.

The Commission finds that complainant has not submitted adequate

justification for an extension of the 45-day limitation period.

Accordingly, the agency's decision dismissing complainant's complaint

was proper and 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

October 27, 2003

__________________

Date