01981730
01-28-1999
Gertrude M. Beuing, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gertrude M. Beuing v. Department of the Navy
01981730
January 28, 1999
Gertrude M. Beuing, )
Appellant, )
)
v. ) Appeal No. 01981730
) Agency No. 97-00039-002
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
November 19, 1997 dismissing appellant's complaint. The agency defined
appellant's complaint as concerning allegations (a) -(i). The agency
dismissed allegations (a) - (h) for untimely EEO Counselor contact.
The agency dismissed allegations (c) and (e)- (i) for failing to state
a claim.
The Commission finds that in allegations (g) and (i) appellant is
attempting to collaterally attack a grievance decision. A collateral
attack of a grievance decision is not appropriately raised in an
EEO complaint and fails to state a claim under 29 C.F.R. �1614.103.
Therefore, we find that allegations (g) and (i) were properly dismissed
for failing to state a claim pursuant to �1614.107(a).
The Commission finds that appellant has alleged in her complaint that
she was subjected to a hostile work environment. The agency found and
the record shows that appellant initially contacted an EEO Counselor on
January 17, 1997. The Commission finds that the hostile environment
claim (allegations (a) - (f) and (h)) is appropriately dismissed for
untimely EEO Counselor contact pursuant to �1614.107(b). None of the
incidents in allegations (a) - (f) and (h) occurred 45 days or prior to
January 17, 1997. Allegations (g) and (i) can not be considered to be
part of the hostile environment claim for purposes of timeliness of EEO
Counselor contact because these two allegations are not appropriately
raised in an EEO complaint. Furthermore, we find that appellant should
have reasonably suspected she was being subjected to a discriminatory
hostile work environment more than 45 days prior to her initial contact
of an EEO Counselor.
On appeal appellant states that "if indeed an excuse [need] be provided
[for contact of an EEO Counselor beyond the 45 day time limit],
it certainly would have included the second stroke that [appellant]
suffered on December 26, 1996." None of the alleged discriminatory
incidents in the hostile work environment (allegations (a) - (f) and
(h)) occurred 45 days or prior to December 26, 1996. Furthermore, we
find that appellant should have reasonably suspected discrimination
more than 45 days prior to December 26, 1996. The Commission finds
that in order for appellant to have timely contacted an EEO Counselor,
such contact would have to have been made prior to December 26, 1996.
Therefore, any events that occurred on December 26, 1996 can not serve
to extend the deadline for contacting an EEO Counselor.
Because of our disposition we do not address whether other portions
of the complaint fail to state a claim or whether allegation (g) was
untimely raised with an EEO Counselor.
The agency's decision dismissing the complaint 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. �l6l4.604(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:
January 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations