01976194_r
01-21-1999
James Miller, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James Miller, )
Appellant, )
) Appeal No. 01976194
v. )
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On August 12, 1997, appellant filed a timely appeal of a July 31, 1997
final agency decision, dismissing his complaint for failure to contact
an EEO Counselor in a timely manner.
The agency framed the allegation of the December 2, 1996 complaint as
whether appellant was discriminated against on the basis of sex (male),
when he was not selected for the position of Administrative Officer of
the Day in the fall of 1996. In dismissing the complaint, the agency
stated that appellant was notified of the non-selection on September 4,
1996, and that on September 11, 1996, he inquired about the reason for his
non-selection by electronic mail. The agency also stated that appellant
failed to provide justification sufficient to extend the time limit.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. EEOC Regulation
29 C.F.R. �1614.105(a)(2) permits the time period to be extended under
certain circumstances and 29 C.F.R. �1614.604(c) provides that the time
limits in Part 1614 are subject to waiver, estoppel and equitable tolling.
Upon review, the Commission finds that the final agency decision was
proper. Initially, the Commission notes that appellant does not dispute
that he was aware of the time limit nor that he contacted an EEO Counselor
on October 30, 1996. The Counselor's Report reveals that appellant was
notified of the non-selection on September 4, 1996. In a September 11,
1996 electronic mail message to the Assistant Chief of the Medical
Administrative Service, appellant specifically stated that he felt that
he was being discriminated against and that he wanted to know the reason
for his non-selection. Because appellant had a reasonable suspicion
of discrimination at the latest by September 11, 1996, his contact
on October 30, 1996, was untimely. See Ball v. U.S. Postal Service,
EEOC Request No. 05880247 (July 6, 1988).
The record reveals that appellant's explanation for the delay in
contacting an EEO Counselor was that he was waiting to obtain information
from the Assistant Chief of the Medical Administrative Service regarding
why he was not selected and that he did not obtain the information until
October 9, 1996. The Commission has consistently held that utilization
of internal agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021 (October 5,
1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April
25, 1991); Hosford v. Veterans Administration, EEOC Request No. 05890038
(June 9, 1989). Accordingly, the Commission finds that appellant has
not provided sufficient justification to extend the time limit.
Consistent with the foregoing discussion, the agency's decision 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:
Jan. 21, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations