Doris M. Randleman, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01993434 (E.E.O.C. Feb. 16, 2000)

01993434

02-16-2000

Doris M. Randleman, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Doris M. Randleman, )

Complainant, )

)

v. ) Appeal No. 01993434

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning 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> The final agency decision was dated February

25, 1999. The appeal was postmarked March 23, 1999. Accordingly,

the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614. 402 (a)),

and is accepted in accordance with EEOC Order No. 960.001, as amended.

The issue on appeal is whether the agency properly dismissed complainant's

complaint on the grounds that she failed to timely file a written

complaint upon receiving notice of her right to file.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 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 complaint.

Complaints are deemed filed when received by an appropriate agency

official, unless postmarked earlier. 29 C.F.R. � 1614.604(b).

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �

1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss

a complaint or a portion of a complaint that fails to comply with the

applicable time limits contained in � 1614.106 unless the agency extends

the time limits in accordance with � 1614.604(c).

On February 25, 1999, the agency issued a final decision dismissing

complainant's complaint on the grounds that she exceeded the fifteen

(15) day time limitation period. After a careful review of the

record, the Commission finds that complainant's complaint was filed

in an untimely manner. On August 13, 1998, complainant sought EEO

counseling from Counselor-1 concerning her claim of discrimination based

on sex, reprisal, and issues of harassment. The record indicates that

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

August 26, 1998. The record indicates that she acknowledged receiving the

notice on August 26, 1998, by signing her name on the appropriate line.

We further note that the document specifically informed complainant that

she only had 15 days to file any subsequent complaint. Complainant,

however, never filed a formal complaint.

The Commission must next determine whether the complainant has submitted

an adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for

extending or waiving the time limitation period. The record indicates

that, on January 21, 1999, complainant contacted Counselor-1 in order to

inquire about the status of her complaint. At that time, according to

the agency, it first learned that complainant wanted to file a complaint.

In a subsequent January 26, 1999 letter, the complainant, in explaining

why she never filed a complaint in August 1998, indicated that she

was never provided a copy of the agency's complaint form. On appeal,

however, complainant maintained, in pertinent part, that she �[b]elieved

the complaint went up due to the amount of paperwork [she] had already

signed.�

We find that complainant has not provided an adequate justification

for extending or waiving the 15-day time limitation period. First,

although the notice that was provided to the complainant indicated that

a complaint form was attached and that it should be used, complainant

was specifically told that Counselor-1 was available to assist her in

completing the form and to answer any questions that she may have.

In addition, complainant was told, �[i]f she required assistance,�

to immediately contact Counselor-1. We find that complainant, by

not contacting Counselor-1 until January 21, 1999, did not act in a

diligent manner in pursuing her interests. See Osborn v. USPS, EEOC

Request No. 05950159 (March 21, 1996). If complainant did not have a

complaint form, she should have contacted Counselor-1 immediately.

We are also not persuaded by complainant's contradictory contention

that she thought her formal complaint form had already been signed

and submitted. The record indicates that she was familiar with the

EEO process. We note, for example, that, on July 20, 1998, complainant

received a notice of final interview from another Counselor concerning an

unrelated matter. She also filed a formal complaint on February 13, 1998.

Accordingly, we find that the decision of the agency was proper and it

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:

__02-16-00_______ __________________________________

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:

_________________________

__________________________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.