01A31450_r
09-08-2003
Sylvester Traylor, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Sylvester Traylor v. Department of the Navy
01A31450
September 8, 2003
.
Sylvester Traylor,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31450
Agency No. 02-61115-001
DECISION
Complainant filed a formal complaint in Agency Case No. 02-6115-001
alleging that he was subjected to discrimination based on reprisal for
prior EEO activity when:
On January 24, 2001, he was not selected for the position of Cashier;
On February 15, 2001, he was terminated from the NEX Security Department;
In February 2001, a Security Manager issued a defamatory and untrue
memo to supervisors and managers about him;
In March 2001, a Security Manager contacted complainant's supervisor at
the Morale, Welfare and Recreation Department to discredit and disgrace
his name;
In March 2001, his supervisor told a former coworker of his that he
was not allowed to talk to complainant;
In March 2001, the Security Manager contacted the Naval Submarine
Base Security Department to have complainant's car decals removed and
complainant's identification card taken away so complainant could not
re-enter the Naval Submarine Base, even though he knew complainant was
employed at the Morale, Welfare, and Recreation Department of the Naval
Submarine Base; and
On March 14, 2001, the local town police were called to the Naval
Housing Facility after a person living there thought complainant was
following her.
The agency issued a decision dated February 8, 2002, dismissing claims (a)
through (f) for untimely EEO Counselor contact. Additionally, the agency
dismissed claim (g) for failure to state a claim. Complainant appealed
the agency's decision and argued that he previously raised the alleged
matters, via a letter dated March 16, 2001, which he presented to an
identified EEO Counselor.
In our previous decision, in Sylvester Traylor v. Department of Navy,
EEOC Appeal No. 01A22217 (October 31, 2002), the Commission affirmed
the dismissal of issues (a) and (g). However, the Commission found
that there was no evidence in the record to show whether complainant
submitted his March 16, 2001 letter in order to initiate the EEO complaint
processing with regard to the matters raised therein. Therefore,
the Commission remanded the matter and ordered the agency to provide
in the record a statement from the identified EEO Counselor, indicating
whether complainant gave the letter to the same EEO Counselor in order to
initiate the EEO complaint process concerning the matters raised therein.
The Commission further ordered the agency to then redetermine whether
claims (b) - (f) were timely raised with an EEO Counselor.
The agency reissued a notice of dismissal of Agency Case No. 02-61115-001,
on December 12, 2002. The agency referenced the declaration of the
counselor in its final decision. The agency decided that issues
(b) - (f), occurring from January through March 2001, were untimely.
The agency noted that complainant did not file on these issues in his
formal complaint for Agency Case No. 01-6115-001 filed on February 16,
2001 nor did he seek counseling for these issues. The agency noted
that on February 27, 2001, complainant requested a right to sue letter
in order to file a claim in U.S. District Court which the Deputy EEO
Officer responded to on March 7, 2001, informing complainant of the
forty-five (45) day requirement to contact a counselor to bring any
new issues into the process. The agency stated that on March 16, 2001,
complainant visited the EEO Office and informed the EEO Counselor that
he did not trust the EEO Office and provided the office with a copy
of a claim he filed in U.S. District Court. The agency claimed that
the EEO Counselor signed and dated the notice complainant gave him
and reminded him of the forty-five (45) day time limit to initiate a
new claim. The agency concluded that since complainant did not file
an informal complaint on the described issues until September 9, 2001,
his complainant is dismissed for untimely counselor contact.
The record contains a declaration of the identified EEO Counselor in
which he states that complainant came to his office to drop off a copy
of the March 16, 2001 letter addressed to the Staff Judge Advocate of
NAVSUBASE New London. The counselor states that he asked complainant
if he wanted to be interviewed to complete an intake sheet to start the
informal complaint process for a new complaint. The counselor states that
complainant told him he was not interested in starting another complaint.
The counselor explains that complainant provided the EEO Office with
a copy of a complaint dated March 2, 2001, that he indicated he would
file in U.S. District Court because he was voicing his displeasure with
the EEO process. The Counselor states that he explained the need to
go through the informal process and that he had forty-five (45) days
to commence the process. The counselor states that he annotated the
document as received from complainant and dated it in order to indicate
that he advised complainant of the time limitation for processing.
Complainant filed the present appeal on January 3, 2003, challenging
the agency's December 12, 2002 dismissal of his complaint for untimely
counselor contact.<1> In his appeal, complainant refers to the signature
of the EEO Counselor acknowledging receipt of his March 16, 2001 letter.
Complainant claims that the EEO Counselor and the Deputy EEO Officer,
told him that it was not necessary for him to open a new case against the
same respondent, but they will incorporate the complainant's March 16,
2001 letter, into his previous complaint, Agency Case No. 01-61115-001.
Complainant further states that the EEO Counselor requested that he �cc�
the March 16, 2001 letter to Agency Case No. 01-61115-001.
Upon review of all submissions on appeal, the Commission finds that the
agency properly dismissed issues (b) - (f) of complainant's complaint
for untimely EEO Counselor contact. We find that complainant has
not presented evidence to show that he submitted his March 16, 2001
letter in order to initiate the EEO complaint processing with regard
to the matters raised therein. Since the incidents alleged in issues
(b) - (f) occurred between February 2001 through March 2001, we find
that complainant's September 9, 2001 counselor contact was beyond the
applicable limitations period.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
September 8, 2003
__________________
Date
1Complainant also appeals the agency's
decision in Agency Case No. 01-61115-001, which is being addressed by
the Commission in a separate decision under EEOC Appeal No. 01A33880.