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.