01A22029_r
12-09-2002
Willie S. Logan, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Willie S. Logan v. Department of State
01A22029
December 9, 2002
.
Willie S. Logan,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A22029
Agency No. 01-45
DECISION
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.
The record reflects that complainant was an agency employee in the
Netherlands who was terminated from his position in January 2001. On June
22, 2001, complainant initiated EEO Counselor contact. The record in
this case contains an EEO Counselor's report, wherein the EEO Counselor
stated that complainant indicated that his delay in contacting an EEO
Counselor was attributable to attempts to �work out his problems� with
agency management.
In his formal complaint complainant alleged that he was was subjected to
discrimination on the bases of race, color, age, sex and disability when:
(1) On January 16, 2001, he was terminated from his position and
immediately escorted out of the agency facility by a
US Marine;
(2) he was not awarded the part-time, intermittent, temporary
(PIT) position that was previously offered to him;
(3) he was issued a contract without a performance work
statement (job description);
(4) he was not allowed to receive school training or to
attend Dutch language classes, although
other mail room personnel received such training;
(5) he was singled out to be checked daily for job
performance;
(6) he had to make all diplomatic runs because other mail
room personnel did not have the required
security clearances;
(7) all paperwork concerning his job/contract was done
improperly, late or not all;
(8) his supervisor made derogatory comments in reference
to his being Santa's helper at the Embassy
holiday party;
(9) his supervisor told him that she did not like him,
and threatened him to get rid of his
contract and him along with it;
(10) he was never properly counseled for the job performance;
(11) he was not allowed compensation authorized for locally
hired personnel, and was told by the
Administrative Counselor that he would get rid of him before
giving him any compensation;
(12) he was harassed, intimidated, threatened with termination
whenever issues arose concerning his
contract;
(13) he was expected to perform duties outside his contract;
(14) several Air Force personnel disagreed with him working in
the mail room on a contract, made several
attempts to have him terminated, including false accusation
for communicating a threat; and
(15) upon termination he was replaced with a younger, non-black,
non-disabled employee.
The record discloses that the most recent alleged discriminatory event
(complainant's termination) occurred on January 16, 2001, but that
complainant did not initiate contact with an EEO Counselor until June 22,
2001, which is beyond the forty-five (45) day limitation period.
On appeal, complainant alleges for the first time that his delay in
contacting an EEO Counselor was attributable to being �blocked� from
seeing an EEO Counselor after he was escorted from the agency facility
on January 16, 2001. Complainant also asserts that because he was
working under a �PSC FAR contract� he had the right to first protest
any decision through a contracting officer, and an ambassador; and that
complainant unsuccessfully contacted an EEO representative at the Hague,
who promised to call complainant back but never did so.
In response, the agency argues that the record reflects that complainant
contacted a contracting officer and an ambassador by mail in February 2001
and May 2001, protesting his dismissal; and that complainant therefore
had the means to initiate timely EEO Counselor contact. Moreover, the
agency acknowledges that complainant contacted an EEO Counselor at the
Hague, but argues that the contact occurred during the week of June 22,
2001, which was more than forty-five days after the most recent alleged
discriminatory event. Regarding complainant's contentions that he felt
it appropriate to first contact a contracting officer and an ambassador,
the agency argues that the time limit for timely EEO contact should
not be waived because complainant has chosen to pursue other means to
resolve the matters raised in the EEO complaint.
Upon our review of the record, we determine that complainant has failed
to present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days. We find that
the record supports a finding that complaint had the ability to contact
an EEO Counselor within forty-five days of the last discriminatory event.
We further note that complainant's assertion that he was �blocked� from
seeing an EEO Counselor was first raised on appeal; and that the EEO
Counselor's Report reflects merely that complainant indicated his delay
was due to first attempting to resolve matters through a contracting
officer and an ambassador. Accordingly, the agency's decision to dismiss
complainant's complaint for failure to initiate contact with an EEO
Counselor in a timely fashion 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
December 9, 2002
__________________
Date