01981936
09-17-1999
Eugene Rush, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Eugene Rush v. Department of Health and Human Services
01981936
September 17, 1999
Eugene Rush, )
Appellant, )
)
v. ) Appeal No. 01981936
) Agency No. NIH-080-94
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
Upon review, we find that appellant's complaint was properly dismissed
pursuant to 29 C.F.R. �1613.215(a)4), on the grounds that appellant
failed to contact an EEO Counselor in a timely manner.<1> The relevant
incident involved appellant being reassigned to the position of Motor
Vehicle Operator, effective December 21, 1986. Appellant did not initiate
contact with an EEO Counselor with regard to this incident until July
19, 1993, long after the expiration of the 30-day limitation period for
contacting an EEO Counselor. We find that appellant failed to act with
due diligence or prudent regard for his rights. O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam). Appellant failed to submit adequate justification for
an extension of the 45-day limitation period. Accordingly, the final
agency decision dismissing appellant's complaint on the grounds of
untimely EEO contact is hereby 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. 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 (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:
September 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the Equal
Employment Opportunity Counselor within thirty (30) calendar days of an
alleged discriminatory event, the effective date of an alleged
discriminatory personnel action, or the date that the aggrieved person
knew or reasonably should have known of the discriminatory event or
personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended the
time limit for contacting an EEO Counselor to forty-five (45) days for
actions occurring on or after October 1, 1992, the effective date of the
new regulations.