______________, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00815 (E.E.O.C. Apr. 24, 2000)

01a00815

04-24-2000

______________, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


______________, )

Complainant, )

)

v. ) Appeal No. 01A00815

) Agency No. BEFLFO9904J0120

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's September 1, 1999 decision

dismissing the complaint on the grounds of untimely EEO counselor

contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.107(a)(2)).<1> The Commission accepts the appeal in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. �1614.405). <2>

By letter dated June 11, 1998, complainant was informed by the agency

that a travel advance in the amount of $350.00 dated December 22, 1994,

had not been repaid. Complainant was further advised that she had the

right to request reconsideration of the agency's determination concerning

the debt, �otherwise, [she] should make restitution in the amount of

$350.00 within thirty days from the receipt of this notification�.

Complainant was advised to pay the debt within thirty days �to avoid

possible collection through payroll deduction.� In a letter dated June

28, 1998, complainant requested a waiver of the debt.

The record shows that complainant sought EEO counseling on January 5,

1999, claiming that she had been discriminated against on the bases of

race, color, national origin, sex, age, and reprisal when on December 7,

1998, the agency withheld from her pay the amount of $350.00 as a result

of an audit on an unpaid travel advance on travel order # 9503J32A dated

December 22, 1994. Complainant subsequently filed a formal complaint

concerning this issue.

The agency issued a final decision dismissing the complaint on the

grounds of untimely EEO counselor contact after finding that although

complainant was informed on July 13, 1998, �of [her] indebtedness in the

amount of $350.00 and the procedures in filing a request for a waiver�

she did not seek EEO counseling until January 5, 1999, well beyond the

45-day time limit.

A review of the record shows that by letter dated June 11, 1998,

complainant was put on notice of her $350.00 debt. She was also advised

that she could request reconsideration of the debt or pay the debt

within thirty days of her receipt of the letter. On June 28, 1998,

complainant asked for a waiver of the debt. The record further shows

that on December 7, 1998, the agency withheld the amount of the debt from

complainant's pay. She then sought EEO counseling on January 5, 1999.

The Commission has held that the 45-day time limit for seeking EEO

counseling starts running on the date the complainant was notified

that a debt was owed to the agency, and that the debt was due within

a certain period of time. See Clark v. USPS, EEOC Appeal No. 01981168

(April 8, 1999). In the instant complaint, by letter dated June 11, 1998,

complainant was notified about her debt and was told to pay within thirty

days of her receipt of the letter. She was also advised that she could

ask for reconsideration of the debt. While complainant sought a waiver

of the debt by letter dated June 28, 1998, we have held that internal

appeals of an agency's action do not toll the running of the applicable

limitations period. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989). Accordingly, complainant's

initial EEO Counselor contact on January 5, 1999, took place well beyond

the 45-day time limit.

The final agency decision was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 24, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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 EQUAL EMPLOYMENT ASSISTANT

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 On appeal, the agency argues that complainant received a copy of

the formal complaint on September 1, 1999, and that her appeal, filed

on October 21, 1999, is therefore untimely. Complainant indicates

on appeal that she received the final decision on September 21, 1999.

Because the agency failed on appeal to supply a copy of the certified

mail receipt or any other material capable of establishing the date of

complainant's receipt of the final decision, the Commission presumes

that the appeal was filed within thirty (30) calendar days of the date

of appellant's receipt of the final decision.