Doranne L. Moncavage, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a02097 (E.E.O.C. Jul. 6, 2000)

01a02097

07-06-2000

Doranne L. Moncavage, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Doranne L. Moncavage v. Department of Veterans Affairs

01A02097

July 6, 2000

Doranne L. Moncavage, )

Complainant, )

)

v. ) Appeal No. 01A02097

) Agency No. 200P-1953

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency decision dated January 7, 2000,

which dismissed complainant's complaint for untimely EEO contact,

is proper pursuant to 64 Fed. Reg. 37, 644, 37, 656 (1999) (to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1> In

her complaint, complainant alleged that she was subjected to harassment.

Specifically, she alleged that her supervisor harassed her on August 2,

1999, March 30, 1999, and on other unspecified dates. The agency found

that complainant did not contact an EEO counselor about these incidents

until November 17, 1999. On appeal, complainant argues that the time

limit should be waived under the continuing violation theory and because

she did not know about the applicable time limits.

According to the regulations, a complainant must make EEO counselor

contact within 45 days of the alleged discriminatory event. 29 C.F.R. �

1614.105(a)(1). In order for complainant to have made timely contact, she

should have contacted an EEO counselor by September 16, 1999. However,

the Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims within a complaint when

the complainant alleged a continuing violation; that is, a series of

related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990).

In this case, complainant has not identified any incident of harassment

which fell within the 45 days prior to her November 17, 1999 EEO counselor

contact. Therefore, she has not established a continuing violation.

In her complaint and on appeal, complainant stated that she did not report

the incidents because she was afraid of being fired. The Commission has

held that mere fear of reprisal is not enough justification to toll the

time limits. See Kovarik v. Dept. of Defense, EEOC Request No. 05930898

(December 9, 1993).

Also, complainant argues that she did not know about the 45-day time

limit. According to the complainant's training report and a statement

of the EEO Program Manager, complainant received information about the

EEO process, including the applicable time limits for initiating EEO

contact, at the New Employee Orientation and the Prevention of Sexual

Harassment classes on September 10, 1998. We find, therefore, that

complainant had constructive knowledge of the applicable time limits.

See Santiago v. United States Postal Service, EEOC Request No. 05950272

(July 6, 1995).

Accordingly, the agency's decision is 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:

July 6, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.