01A11734
04-16-2001
Angus M. Wall, Jr., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Angus M. Wall, Jr. v. Department of Transportation
01A11734
April 16, 2001
.
Angus M. Wall, Jr.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A11734
Agency No. 3-01-3003
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The EEO Counselor's Report shows that complainant
sought EEO counseling on July 7, 2000,<1> claiming that he had been
discriminated against on the bases of race, sex, age, and reprisal
when: (1) he was issued a 10-day suspension on April 27, 2000;<2> (2)
in October 1999, he was given a 90-day detail; (3) when he completed
the 90-day detail, it was extended for an additional 60 days; (4)
on August 12, 1999, he was informed his job was out for bid; and,
(5) after speaking to management about the bid, he was informed that
management was dissatisfied with his performance and wanted him to take
a downgrade to a FG-13 position.
By letter dated April 17, 2000, complainant was advised that he would be
suspended for ten days beginning on Monday, May 1, 2000. Complainant
was also advised that he could seek EEO counseling within 45 days of
his receipt of the suspension letter. The record further shows that
complainant received the letter on April 17, 2000.
Complainant subsequently filed a formal complaint concerning the issues
he had previously raised with the EEO Counselor. On December 7, 2000,
the agency issued a final decision dismissing the complaint on the
grounds of untimely EEO Counselor contact.
The record discloses that the most recent alleged discriminatory
events occurred from 1999 through May 2000. However, complainant
did not initiate contact with an EEO Counselor until July 7, 2000,
which is beyond the forty-five (45) day limitation period. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 16, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The final agency decision found that the initial counselor contact
occurred on June 25, 2000. Nevertheless, the EEO Counselor's Report shows
that it occurred on July 7, 2000. This contradiction is of no consequence
to our analysis because both dates were beyond the 45-day time limit.
2 Although the EEO Counselor's Report states the suspension was issued
on April 27, the record shows that it was issued on April 17, 2000.