0120170783
04-13-2017
Genaro G.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genaro G.,1
Complainant,
v.
Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120170783
Agency No. 9C1S16007
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 5, 2016, dismissing his complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had just been hired as an Engineering Technician at the Agency's facility in Schriever Air Force Base, Colorado. Complainant only worked for the Agency for one week (May 2 - 9, 2016).
On September 19, 2016,2 Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (American Indian/African American), sex
(male), color (light skinned American), age, and reprisal3 when: (1) while staying at a hotel in Colorado Springs, his room was so noisy that he could not sleep; (2) in April 2016, before he started working for the Agency, he was assured by management officials that "the job was very good, long term, and very good working conditions;" (3) on May 9, 2016, Agency officials asked Complainant for his CAC card and cancelled his position without giving him anything in writing from Human Resources; and (4) he did not get paid on May 20, 2016, and had to call and email several people, and finally got paid on July 2, 2016.
The EEO counseling report indicates that Complainant's hiring by the Agency was cancelled when the Civilian Personnel Office discovered that Complainant did not have veteran's preference.
In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record discloses that the last alleged discriminatory event occurred on May 20, 2016, but Complainant did not initiate contact with an EEO Counselor until August 20, 2016, which is beyond the forty-five (45) day limitation period. Even if one used the July 13, 2016 date of Complainant's related EEO charge, Complainant's EEO counselor contact is still untimely. 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 (M0416)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 It appears that Complainant also filed a charge of discrimination on July 13, 2016, concerning these same matters with EEOC's Philadelphia District Office.
3 Complainant's reprisal claims appear to be based on discrimination charges he filed in the private sector.
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