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.