01982436
04-09-1999
John J. Jurisin, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
John J. Jurisin v. Department of the Navy
01982436
April 9, 1999
John J. Jurisin, )
Appellant, )
)
v. ) Appeal No. 01982436
) Agency No. 93-66409-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleged
that he was discriminated against on the basis of age (DOB: 8/13/17)
when in May 1991, he was furloughed and denied reassignment.<1>
In its FAD, the agency determined that pursuant to 29 C.F.R. � 1613.214,
then in effect, appellant failed to initiate timely EEO contact.<2> The
furlough notice, which appellant received on June 3, 1991, stated that
if appellant suspected discrimination regarding the furlough, he had
thirty (30) days to contact an EEO counselor. The record establishes
that two anonymous phone calls were made to the EEO Office, one in June
1991, and one in July 1991. The agency states that on both occasions,
the anonymous caller was advised that he was subject to the agency's
discrimination complaint process; advised of the time limits to be met
to initiate counseling; and was afforded an opportunity to meet with an
EEO counselor. The record indicates that appellant refused to submit
to the agency's complaint process. Appellant did not contact an EEO
counselor again until November 2, 1992, at which point he identified
himself as the above referenced anonymous caller.
On appeal, the agency contends that the anonymous phone calls cannot be
construed to toll the time limit because their anonymous nature indicates
that appellant did not intend to initiate his own complaint process and
that he also refused to submit to the process itself in spite of being
advised repeatedly that it applied to him. Thus, the agency argues
that appellant first initiated EEO contact with the intent to pursue
his own complaint on November 2, 1992, approximately seventeen (17)
months after the time limit for filing had expired.
EEOC Regulation 29 C.F.R. � 1613.214(a)(1)(i) required that complaints
of discrimination be brought to the attention of an EEO counselor
within thirty (30) calendar days of an alleged discriminatory event,
the effective date of an alleged discriminatory personnel action, or the
date that the aggrieved person knew or reasonably should have known of
the discriminatory event or personnel action. The Commission has held
that when assessing the timeliness of EEO contact, an appellant must,
at a minimum, intend to pursue counseling when he initiates contact. If,
upon contact, an appellant is sufficiently apprized of the consequences
of foregoing the counseling process and chooses to forego the process
until some time after the expiration of the applicable time limit,
we have affirmed the agency's determination that contact was untimely.
Porter v. Department of the Navy, EEOC Request No. 05930873 (January 21,
1994) (citing Snyder v. Department of Defense, EEOC Request No. 05901061
(November 1, 1990)).
Based on a thorough review of the record, including appellant's submission
on appeal, we find that appellant knew or should have known of the proper
procedure for filing an EEO complaint and that he failed to initiate
timely EEO counselor contact. We note specifically that appellant does
not contend that he was unaware of the filing requirements or that he was
in any way prevented from complying with them. Therefore, the agency's
dismissal was proper.
Accordingly, we AFFIRM the FAD.
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. 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:
April 9, 1999 ____________________________
DATE Ronnie Blumenthal, Director
1 This complaint is before the Commission for the second time. In Jurisin
v. Department of the Navy, EEOC Appeal No. 01965567 (September 2, 1997),
the Commission found that the agency had not adequately explained the
grounds on which it relied to dismiss the complaint for untimely counselor
contact.
2 The Commission notes that, effective October 1, 1992, all pending and
subsequently filed EEO complaints are to be processed in accordance with
29 C.F.R. � 1614.103 et seq. However, the Commission determines that
because the alleged discriminatory event occurred prior to October 1,
1992, the regulations found in 29 C.F.R. Part 1613 are applicable on
the issue of whether appellant initiated timely EEO counselor contact.