Timothy P. Baker, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionFeb 9, 2007
0120054052 (E.E.O.C. Feb. 9, 2007)

0120054052

02-09-2007

Timothy P. Baker, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.


Timothy P. Baker,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

(Bureau of Customs and Border Protection),

Agency.

Appeal No. 01200540521

Agency No. HS-05-0124

DECISION

Complainant filed a timely2 appeal with this Commission from the agency's

decision dated March 25, 2005, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the

Commission finds that complainant's complaint was properly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor

contact. In his complaint, complainant alleged that he was subjected

to discrimination on the bases of race (Native American), disability,

age (D.O.B. 04/01/59), and reprisal for prior protected EEO activity

(arising under an EEO statute that was unspecified in the record) when

the agency subjected him to a hostile work environment, which culminated

in a Notice of Proposed Removal on March 23, 2004.

In his formal complaint, complainant alleged that on March 23, 2004,

the agency served him with a proposed removal. Complainant also stated

that he has been subjected to a hostile work environment on an ongoing

basis because of the "continued holding over my head of a frivolous

removal action." Complainant did not however, explain the nature of such

alleged ongoing harassment, nor cite any dates later than March 23, 2004.

In addition, we find that complainant stated "To date several reasonable

accommodations have been requested but none have been granted." Again

however, complainant did not elaborate on what accommodations he required,

how/why the agency failed to provide the requested accommodations,

or when all of these events occurred. Accordingly, we find that the

most recent incident of alleged discrimination occurred on March 23,

2004, but complainant did not initiate contact with an EEO Counselor

until May 21, 2004, which is beyond the forty-five (45) day limitation

period. On appeal, complainant has presented no persuasive arguments

or evidence warranting an extension of the time limit for initiating EEO

Counselor contact. 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

February 9, 2007

__________________

Date

1 Due to a new data system, your case has been re-designated with the

above referenced appeal number.

2 Complainant contends that he did not receive the agency's FAD until

April 25, 2005, although it was issued on March 25, 2005. We will assume

that the appeal is timely.

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0120054052

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036