01981657
01-14-1999
Denice M. Johnson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Denice M. Johnson v. Department of Veterans Affairs
01981657
January 14, 1999
Denice M. Johnson, )
Appellant, )
)
)
v. ) Appeal No. 01981657
)
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to file a formal complaint in a timely
manner. Appellant alleged that she was subjected to discrimination
in reprisal for prior EEO activity when she was subjected to ongoing
harassment after filing a complaint of sexual harassment.
EEOC Regulation 29 U.S.C. �1614.107(b) provides for the dismissal of a
complaint, or portion thereof, that fails to comply with the applicable
time limits contained in 29 U.S.C. �1614.106. EEOC Regulation 29
U.S.C. �1614. 106(b), in turn, provides that a complaint must be filed
within 15 days of receipt of the notice of right to file a formal
complaint (NORF).
The record in this case shows that appellant signed for receipt of
the NORF on August 20, 1997, but did not file a formal complaint until
September 15, 1997, beyond the fifteen (15) time limit. Appellant's
only justification for the delay is that she "thought that [the instant
complaint] was a part of [her] initial complaint because it was a direct
result of that initial complaint." We note, however, that the first
paragraph of the NORF states:
This is notice that [the EEO Counselor has] completed [his/her] EEO
counseling activities in connection with the matter which [appellant]
presented to [him/her]. If you are not satisfied with the results of
EEO counseling, you now have the right to file a formal complaint of
discrimination. If you decide to file a formal complaint, you must do
so within 15-calendar days of your receipt of this notice.
As appellant provided no other justification sufficient to extend the
applicable time limit, we find that the agency properly dismissed her
complaint for failure to file a formal complaint in a timely manner.
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan. 14, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations