John C. Knecht, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01991124 (E.E.O.C. Nov. 19, 1999)

01991124

11-19-1999

John C. Knecht, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.


John C. Knecht, )

Complainant, )

)

v. ) Appeal No. 01991124

) Agency No. DFAS-98-005

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Finance and )

Accounting Service), )

Agency. )

______________________________)

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint, for failure to timely contact

an EEO Counselor.<1> Complainant alleged that he was subjected to

discrimination on the basis of physical disability (back injury, and

carpal tunnel syndrome) when the agency refused to process 118 hours of

sick leave thereby forcing complainant to retire in November 1997 rather

than December 1997.

The Commission determines that complainant's claim was not timely

raised before an EEO Counselor. Specifically, complainant's initial

EEO Counselor contact in July 1998 was more than forty-five days

after the alleged matters raised in his complaint purportedly occurred.

Moreover, the matters raised in complainant's complaint are not part of a

continuing violation. As discussed above, none of the matters occurred

withing forty-five days of complainant's initial EEO Counselor contact.

Moreover, complainant should have reasonably suspected discrimination

concerning the processing of his sick leave more than forty-five days

prior to his initial contact in July 1998. Complainant has failed to

present adequate justification for extending the limitation period

beyond forty-five days. Accordingly, the agency's decision to dismiss

complainant's complaint for failure to initiate contact with an EEO

Counselor in a timely fashion was proper and 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 at 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 at 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).

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

November 19, 1999

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:

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.