01985208
09-09-1999
Gerald Mayer, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gerald Mayer v. Department of the Navy
01985208
September 9, 1999
Gerald Mayer, )
Appellant, )
) Appeal No. 01985208
v. ) Agency No. DON-98-67001-015
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The FAD was dated April 14, 1998.
The appeal was postmarked on June 17, 1998. Accordingly, the timely<1>
appeal is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant first contacted an EEO Counselor on September 17, 1997.
He then filed a formal complaint on February 13, 1998, alleging continuous
and ongoing discrimination on the basis of physical disability (obsessive
compulsive disorder/anxiety) when:
(1) the agency failed to accommodate his disabling condition;
(2) an agency official, A-1, repeatedly abused and harassed him in
relation to his medical retirement benefits;
(3) A-1 repeatedly abused and harassed him in relation to his workers'
compensation benefits;
(4) an agency official, A-2, denied his requests for advanced sick leave;
(5) A-2 or her agents intentionally delayed processing appellant's
workers' compensation benefits; and,
(6) the agency forced complainant to work outside of his medical
restrictions causing an aggravation of his condition.
Appellant did not indicate the dates on which these allegations occurred.
He did state in his formal complaint that the most recent instance
of discrimination occurred on August 25, 1997. He did not, however,
explain what happened on this date.
In its FAD, the agency dismissed the complaint as untimely. It
identified the dates of these allegations, and then found that all of
the allegations were untimely because appellant would reasonably have
known of their existence at the time they occurred, but did not contact
an EEO Counselor within 45 days of that occurrence. The agency also
concluded that appellant could not establish a continuing violation
because he did not have a single timely allegation.
According to the agency, allegation (1) occurred between February 16,
1996 and July, 1996. Allegation (2) ceased on May 21, 1997, because
appellant has not alleged any harassment or delay in processing his
retirement benefits since he received a letter on that date approving
his workers' compensation claim. Allegations (3) and (5) ceased on
May 21, 1997, when appellant received a letter approving his workers'
compensation claim. Allegation (4) occurred on December 10, 1996, when
appellant received a letter from agency official, A-3, denying him
advance sick leave. Allegation (6) ceased on July 14, 1997, when the
agency detailed appellant to Office Automation Clerk, thus accommodating
his disability. This appeal followed. Appellant did not dispute the
agency's identification of the dates on which his allegations occurred.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days
of the effective date of the personnel action. The Commission has
held that the time requirement for contacting an EEO Counselor can be
waived as to certain allegations within a complaint when the complainant
alleges: 1) that although she waited more than 45 days to initiate EEO
counseling, she did not suspect discrimination at the time the action
in question occurred, see Bracken v. United States Postal Service, EEOC
Request No. 05900065 (March 29, 1990); 2) she was unaware of the 45-day
time period, see Pride v. United States Postal Service, EEOC Request
No. 05930134 (August 19, 1993); or 3) a continuing violation, that is,
a series of related discriminatory acts, one of which falls within the
time period for contacting an EEO Counselor. See McGivern v. USPS,
EEOC Request No. 05901150 (December 28, 1990).
Appellant was untimely in contacting an EEO Counselor, with respect to
all six of his allegations. The date of his EEO Counselor contact,
September 17, 1997, is at least more than 45 days after any of these
allegations occurred. On appeal, appellant does not dispute the dates
of the allegations as explained by the agency. Also, appellant did not
allege that he did not suspect discrimination at the time it occurred
or that he was unaware of the 45 day time limit to initiate counseling.
He does, however, allege a continuing violation. We find, however,
that appellant has not established a continuing violation because he
has not shown a discriminatory act for which his EEO Counselor contact
was timely. We, therefore, agree with the agency that appellant's EEO
Counselor contact was untimely, and that his allegations do not constitute
a continuing violation.
CONCLUSION
Accordingly, the decision of the agency was proper and is 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 9, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency did not supply a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
FAD. Since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within thirty
(30) days of receipt of the agency's final decision. See 29 C.F.R.
�1614.402(a).