Denise Johnson, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01992134 (E.E.O.C. Feb. 17, 2000)

01992134

02-17-2000

Denise Johnson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Denise Johnson, )

Complainant, )

)

v. ) Appeal No. 01992134

) Agency No. 98-3571

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On January 20, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

December 22, 1998, pertaining to her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

(Caucasian) and in reprisal for prior EEO activity when she was subjected

to a continuing pattern of harassment, and was denied reassignment or

transfer to another position.<2>

The agency dismissed the complaint for failure to file a formal

complaint in a timely manner. Specifically, the agency found that

complainant received her notice-of-right-to-file-a-formal-complaint

(NRTF) on February 26, 1998, but did not file a formal complaint until

April 8, 1998. The agency did not accept complainant's argument that

the time limit should be extended because she filed within fifteen (15)

days of the most recent act alleged.

The record includes the NRTF, signed and dated by complainant on

February 26, 1998, and a copy of the formal complaint, dated April

3, 1998. The NRTF informs complainant that she must file her formal

complaint within fifteen (15) days of receiving the NRTF. The record

also includes a letter dated May 11, 1998, requesting that complainant

explain her delay in filing her formal complaint.

By a response dated May 13, 1998, complainant's attorney explained that

the complaint involved multiple, ongoing acts. The attorney argued that

complainant was required to file within the �relevant time� dated from

the most recent act of discrimination.

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written

complaint with an appropriate agency official within fifteen (15)

calendar days after the date of receipt of the notice of the right to

file a formal complaint. The regulations also provide for dismissal of

complaints that fail to comply with the applicable time limits contained

in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the

time limits in accordance with � 1614.604(c). See 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(2)).

The record in this case indicates that complainant received a notice of

the right to file a formal discrimination complaint on February 26, 1998.

The notice informed complainant that she had fifteen (15) days from

the date of receipt of the notice in which to file a formal complaint.

The record further reflects that complainant did not file a formal

complaint within fifteen days of receiving this notice, but instead filed

the formal complaint on April 8, 1998. Complainant's explanation for her

late filing -- that EEOC Regulations allow complainant to file her formal

complaint within fifteen days of the most recent act of discrimination --

is incorrect. Complainant has failed to present adequate justification,

pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 17, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant 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 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.

2Complainant alleged twenty-seven (27) separate instances of harassment

occurring from April 1997 through April 6, 1998.