01980219
02-02-2000
J. W. Wiley, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
J. W. Wiley v. Department of the Interior
01980219
February 2, 2000
J. W. Wiley, )
Complainant, )
)
v. ) Appeal No. 01980219
) Agency No. FNP-97-060
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated September 5, 1997
dismissing complainant's complaint for untimely EEO Counselor contact
and for stating the same claim as previously raised by complainant is
proper pursuant to the regulations set forth at 64 Fed. Reg. 37,644,
37656 (to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)
and (a)(1)).<1> Complainant has not challenged the agency's framing of
the complaint.
In claim 1, complainant alleged that he was reassigned in 1984. In claim
2, complainant alleged that he was not allowed to apply for a position
in 1990. In claim 3, complainant alleged that he was harassed prior to
his termination in 1985. In his complaint, complainant indicates that he
initially contacted an EEO Counselor in 1996. The Commission finds that
claims 1 - 3 were properly dismissed for untimely EEO Counselor contact.
Complainant's contact of an EEO Counselor in 1996 regarding claims 1 -
3 is beyond the 45 day time limit set forth in � 1614.105(a)(1).
In claim 4, complainant alleged that he was terminated in May 1985.
The Commission agrees with the agency's finding that complainant raised
this issue in a prior EEO matter with the agency. Therefore, we find
that claim 4 was properly dismissed pursuant to � 1614.107(a)(1).
Because of our disposition we do not address whether claim 4 was also
properly dismissed by the agency on other grounds.
The agency's decision dismissing the complaint 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:
February 2, 2000
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:
_____________________ _________________________
Date
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.