01a00013
03-24-2000
James D. Boswell, Complainant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.
James D. Boswell, )
Complainant, )
)
v. ) Appeal No. 01A00013
) Agency No. T-0279-TX-A-04-99-L
Louis Caldera, )
Secretary, )
Department of the Army, )
(National Guard Bureau), )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated July 13, 1999
dismissing complainant's complaint for untimely EEO Counselor contact is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37656 (to be codified as and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)).<1>
The agency defined the complaint as alleging that complainant was
discriminated against on October 1, 1998, based on religion, when
LTC A alleged that complainant lacked courage in reference to filing a
written complaint instead of talking to management about any grievances.
The EEO Counseling Report shows that complainant initially contacted
an EEO Counselor on November 24, 1998. Complainant has not shown that
he attempted to commence the EEO process prior to November 24, 1998.
The agency asserts, and the record shows, that the agency sent
three separate letters to complainant in their attempts to clarify
the complaint. The Commission finds that complainant has never fully
clarified the complaint and that the agency's framing of the complaint,
under the circumstances, was a reasonable summary of the complaint.
In particular, complainant does not argue on appeal that there were
incidents in his complaint which occurred 45 days or less prior to his
EEO contact.<2> The Commission finds that complainant has failed to
timely contact an EEO Counselor within the 45 day time limit set forth in
� 1614.105(a)(1). Furthermore, complainant has not provided a sufficient
reason to toll the 45 day time limit for contacting an EEO Counselor.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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:
March 24, 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.
2Complainant's appeal was filed on October 1, 1999. Any statement or
brief on behalf of a complainant in support of the appeal must be filed
within 30 days of filing the notice of appeal. 64 Fed. Reg. 37,644,
37659 (to be codified as 29 C.F.R. � 1614.403(d)). Complainant's
statements/briefs submitted on November 26, 1999 and subsequent to that
date, therefore, will not be considered in the instant decision.