01A22896_r
08-06-2002
James R. Baker, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
James R. Baker v. Department of the Navy
01A22896
August 6, 2002
.
James R. Baker,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22896
Agency No. 02-65540-003
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated April 16, 2002, 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.
According to the agency, in his complaint, complainant claimed that he
was discriminated against on the basis of national origin (Iranian) when:
Complainant's access to classified information was suspended by letter
dated October 22, 2001; and
Complainant was issued a Decision on Notice of Proposed Indefinite
Suspension, dated February 14, 2002, which has not yet been effected.
On appeal, complainant disputes the agency's consideration of claim 2 in
its final decision. Complainant repeatedly asserts that he did not filed
a claim of discrimination regarding the Decision on Notice of Proposed
Indefinite Suspension, dated February 14, 2002. Complainant admits that
he did file an appeal on this matter with the Merit Systems Protection
Board (MSPB), but complainant denies that such a claim was filed in his
formal EEO complaint with the agency. We determine that, to the extent
that such claim was ever made in complainant's formal complaint, it has,
in effect, been withdrawn by complainant.<1>
On appeal, complainant also claims that he was coerced into signing the
February 26, 2002 settlement agreement between the parties because the
agency would only allow complainant to use his annual leave following his
indefinite suspension without pay if he agreed not to appeal the decision
of indefinite suspension. To the extent that complainant believes
that the agency has failed to comply with the terms of the settlement
agreement, complainant shall notify the agency's EEO Director, in writing
of the alleged noncompliance within 30 days of when he knew or should
have known of the alleged noncompliance. See 29 C.F.R. � 1614.504(a).
At this time, we consider only claim 1 on appeal. Complainant claims
that his suspension of access to classified information, by letter dated
October 22, 2001, was based on inaccurate and discriminatory information.
Complainant claims that his suspension of access to classified information
resulted from his travel to Iran. Complainant asserts that it was the
denial of such access to classified information on which his suspension
was ultimately based, however, complainant claims that he neither filed
a complaint, nor appeals the suspension itself.
We find that the agency properly dismissed claim 1 of complainant's
complaint for untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2). EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires complaints of discrimination to be brought to the attention
of the EEO Counselor within forty-five (45) days of the date of the
claimed discriminatory matter, or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission's regulations, however, provide that the time limit will be
extended when the complainant shows that he or she was not notified of
the time limits and was not otherwise aware of them, that he or she did
not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her control from
contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. See 29 C.F.R. �
1614.105(a)(2).
The record discloses that the claimed discriminatory event described in
claim 1 occurred on October 22, 2001, but complainant did not initiate
contact with an EEO Counselor until March 4, 2002,<2> which is beyond
the forty-five (45) day limitation period. The Commission finds that
complainant should have reasonably suspected discrimination on October
22, 2001, which was more than 45 days before his initial contact with
an EEO Counselor. Complainant has failed to
submit adequate justification, pursuant to 29 C.F.R. � 1614.105(a)(2) for
extending the time limitation for EEO Counselor contact beyond forty-five
(45) calendar days.
Therefore, the agency's 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
August 6, 2002
__________________
Date
1Complainant notes that the indefinite
suspension has been effected, and that he is currently on a non-duty
status without pay; nevertheless, based on complainant's statement on
appeal, that issue is not on appeal before the Commission.
2Complainant submits that he �approached� an EEO Counselor at the end
of February 2002. This does not indicate that complainant initiated EEO
Counselor contact with an intent to pursue the EEO process. Even assuming
that he initiated EEO Counselor contact at the end of February 2002,
however, such contact still occurred outside the forty-five (45) day
limitation period.