01a50435
01-31-2005
Stephan F. Thompson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Stephan F. Thompson v. Department of Defense
01A50435
01-31-05
.
Stephan F. Thompson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A50435
Agency No. DFAS-IN-AS-04-089
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 21, 2004, 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
on the bases of sex (male) and reprisal for prior EEO activity when:
On May 27, 2004, he was presented with a proposed suspension without
pay for seven days;
On February 27, 2004, he was presented with a proposed suspension without
pay for three days;
On February 11, 2004, he was presented with a proposed suspension without
pay for three days;
Since 1998, his performance evaluations have been lowered; and
On some unidentified date, he was given a letter of reprimand.
The agency dismissed claim 1 for failure to state a claim and claims 2 -
5 for untimely EEO counselor contact. On appeal, complainant contends
that claims 2 - 5 were �on-going and continuous� and hence were improperly
dismissed for untimely EEO counselor contact.
We find that complainant's complaint was properly dismissed. Although
the agency dismissed claim 1 for failure to state a claim, and claims
2 - 3 for untimely EEO counselor contact, the Commission finds that
these claims are more properly analyzed for whether they allege harm
from a proposed action. The Commission's regulations set forth at 29
C.F.R.� 1614.107(a)(5) provide, in part, that the agency shall dismiss
a complaint that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.
Here, complainant failed to claim or show that the proposal to suspend
resulted in any action against him or amounted to more than a proposal
to take a personnel action. Furthermore, complainant has not shown
how he was aggrieved by the alleged proposed action. Accordingly, we
find that the agency's dismissal of claims 1 - 3 was proper, albeit on
different grounds.
We further find that the agency properly dismissed claims 4 and 5
for untimely EEO counselor contact. EEOC Regulation set forth at 29
C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. Here, the record evidence
shows that complainant contacted an EEO counselor on July 9, 2004 and
alleged that since 1998, his performance evaluations have been lowered
and on some unidentified date, he was given a letter of reprimand. While
complainant asserts on appeal that these acts were �on-going and
continuous,� complainant fails to claim or show that one or more of
the acts fell within the forty-five day period for contacting an EEO
counselor. Accordingly, the Commission finds that the agency's decision
to dismiss allegations 4 and 5 on the grounds that appellant failed to
seek timely contact with an EEO Counselor 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
__01-31-05________________
Date