Alma Kern, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01996684 (E.E.O.C. Nov. 28, 2000)

01996684

11-28-2000

Alma Kern, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Alma Kern v. Department of Veterans Affairs

01996684

11-28-00

.

Alma Kern,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996684

Agency No. 99-3042

DECISION

Upon review, the Commission finds that complainant's complaint

was properly dismissed pursuant to EEOC Regulation 29 C.F.R. �

1614.107(a)(2)), for untimely EEO contact.<1> The record discloses that

the alleged discriminatory event occurred on or about October 28, 1998,

when complainant submitted a request for and was denied 240 hours of

advanced sick leave. In a letter dated December 14, 1998, complainant's

attorney, B-1, informed the agency that complainant told him that white

employees were allowed to take advanced sick leave up to 240 hours, but

that black employees were not. In a letter, dated February 1, 1999, A-1,

Manager, Great Lakes Human Resources Management Service, informed B-1

that if complainant wanted to file a discrimination complaint regarding

the denial of her request for advanced sick leave, she needed to contact

the EEO Program Manager. The name and telephone number of the manager

was provided to B-1. Complainant, however, did not initiate contact with

an EEO counselor until June 8, 1999, which is well 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.

According to the record, complainant maintained that she did not seek

counseling earlier because she �was in the hospital and sick.<2>� The

record, however, indicates that, while she was off-work for 6 months,

she returned to work on or about March 19, 1999.<3> 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

__11-28-00____________________________

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

______________________________

1On 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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.

2According to complainant, she had surgery on the arteries of both legs.

3We also find that complainant failed to offer any persuasive evidence

that, during the entire six month period that she was off-work, she

was so incapacitated by her condition that she was unable to initiate

EEO contact. See Davis v. United States Postal Service, EEOC Request

No. 05980475 (August 6, 1998).