0120083372_rdoc
09-26-2008
Tyrone D. Scott, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Tyrone D. Scott,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120083372
Agency No. 9Y0R08001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 16, 2008, dismissing his formal 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.
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact.
At the time of this complaint, complainant was the historian at the Yokota
AFB, in Yokota, Japan. In his formal complaint, complainant alleged that
he was subjected to discrimination on the bases of race (African-American)
and in reprisal for prior protected EEO activity when, on February 21,
2008, management denied reconsideration of his appraisal.
The record before us shows that the alleged discriminatory event occurred
on February 21, 2008, but that complainant did not initiate contact with
an EEO Counselor until April 10, 2008, which is beyond the forty-five
(45) day limitation period.
On appeal, complainant contended that he "worked within his chain of
command until 13 March [2008]" to appeal his appraisal rating through
the agency's internal "NSPS" process. Internal agency processes of
appeal do not toll the time within which an employee must contact an
EEO counselor; such internal avenues of appeal have a different focus
than the EEO administrative procedure. See 29 C.F.R. � 1614.105(a)(1);
� 1614.107(a)(2); � 1614.604(c). Complainant has presented no persuasive
argument or evidence warranting an extension of the time limit for
initiating his EEO Counselor contact, and we cannot credit his work
within his chain of command to excuse his untimely contact.1 Id.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__09/26/2008________________
Date
1 We note that complainant was advised of the EEO process when he began
his appeal through the NSPS process. We note, further, that complainant
received his appraisal prior to his request that it be reconsidered.
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0120083372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083372