Joseph E. Garst, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01984215 (E.E.O.C. Jan. 19, 2000)

01984215

01-19-2000

Joseph E. Garst, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Joseph E. Garst v. Department of Veterans Affairs

01984215

January 19, 2000

Joseph E. Garst, )

Complainant, )

)

v. ) Appeal No. 01984215

) Agency Nos. 97-1433

Togo D. West, Jr., ) 97-1695

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.<1> Complainant received the final agency

decision on April 7, 1998. The appeal was postmarked April 29, 1998.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

ISSUES PRESENTED

1. The first issue on appeal is whether the agency properly dismissed all

but one of the claims of the complaint (Agency No. 97-1433) on the grounds

that complainant failed to contact an EEO Counselor in a timely manner.

2. The second issue on appeal is whether the agency properly dismissed

the remaining claim of the complaint (Agency No. 97-1433) on the grounds

of failure to state a claim.

3. The third issue on appeal is whether the agency properly dismissed one

claim of the complaint (Agency No. 97-1695) on the grounds that it was

the basis of a civil action decided by a United States District Court

in which complainant was a party.

4. The fourth issue on appeal is whether the agency properly dismissed

the remaining claim of the complaint (Agency No. 97-1695) on the grounds

of failure to state a claim.

BACKGROUND

Agency No. 97-1433

Complainant initiated contact with an EEO Counselor on March 18, 1997.

In a formal EEO complaint dated October 17, 1997, complainant claimed

that he was discriminated against on the bases of his race (white) and

in reprisal for his previous EEO activity with regard to the following

employment matters:

1. Assignment of duties on November 19, 1996, and continuing.

2. His performance appraisal on May 29, 1996, and December 20, 1996,

and continuing.

3. Reassignments on October 24, 1996, and November 19, 1996, and

continuing.

4. Training on October 30, 1996, and continuing.

5. Harassment on December 6, 1996, and continuing.

6. Hostile working conditions on August 5, 1994, and continuing.

7. Reverse discrimination on October 24, 1996, and continuing.

8. Retaliation on August 5, 1994, and continuing.

With regard to the specific incidents of his complaint, complainant

states that he was targeted for retirement in a memorandum that was widely

distributed; he was arbitrarily demoted from Chief, ADP Systems Support

Division to Supervisory Computer Specialist, then to Team Leader, and

then to Computer Specialist; he was forced to purchase and use inferior

personal computers for his network workstations; the Director of the

Pharmaceutical Service fragmented the department by directly assigning

tasks to complainant's subordinates, by not informing complainant

of current developments within the ADP section, and by suggesting to

complainant's subordinates that their team leader is not doing his job by

not keeping them informed. Complainant also claims that 2 individuals

were detailed out of his supervisory authority in order to make his

job more difficult; a planning retreat was held on February 17, 1997,

and he was the only manager not invited to participate, and he was not

informed about what occurred at the planning session; the Director of

the Pharmaceutical Service told him that he would the supervisor of ADP,

but a few weeks later the Director told him that he would be a team leader

instead; an individual lacking sufficient experience to lead an automated

systems development team was placed "in charge" of him; his request for

training of his staff was denied/delayed because he did not use the

preferred training source; he has been repeatedly denied sufficient

resources to efficiently operate the ADP department despite the fact

that all other departments have been allowed to increase their staffs

and fill their vacancies; and he was required to combine two networks.

By letter dated May 28, 1997, the agency submitted to complainant a

request for additional information. Complainant was requested to

provided the following information: 1. State in what manner your

assigned duties were altered or changed on November 19, 1996; 2.

State the specific incident of harassment which occurred on December

6, 1996, and in what respect that harassment has continued; 3. With

respect to your performance appraisal, state what occurred on May 29,

1996 and December 20, 1996, and in what manner you were aggrieved; 4.

Explain the issue of reassignment that allegedly arose on October 24,

1996 and November 19, 1996, and continuing; 5. State the specific

incident relating to training that occurred on October 30, 1996, and

continuing, and in what manner you were aggrieved; and 6. Clarify the

specific incident which arose on October 24, 1996, and resulted in alleged

reverse discrimination. Complainant was informed that his complaint

lacked the required specificity and detail with respect to these issues.

The agency informed complainant that he must provide this information

within 15 calendar days of his receipt of the letter, and that failure

to provide the information requested or failure to respond at all within

that time limit may cause the dismissal of his complaint.

In its final decision, the agency dismissed the entire complaint except

for one claim on the grounds of untimely EEO contact. The agency

determined that complainant failed to respond to the request for

additional information. The agency noted that regardless of the lack

of specificity of some of the claims, that all of the cited incidents,

except one, occurred more than 45 days before complainant initiated

contact with an EEO Counselor. The claims of reprisal which were also

raised in complainant's civil action, identified as Civil Action No. 95

C 3925, in the United States District Court for the Northern District

of Illinois Eastern Division, were dismissed on the grounds of untimely

EEO contact, and also on the grounds of res judicata. According to the

agency, these matters were settled by complainant's acceptance of an

offer of judgment dated April 25, 1996, and therefore, the doctrine of

res judicata barred these claims from being raised in the EEO complaint

process. The remaining claim was dismissed on the grounds of failure to

state a claim. This claim involved complainant being the only manager

who was not invited to participate in a planning retreat held on February

17, 1997. The agency determined that complainant was not invited because

he is a GS-13, Computer Specialist (Team Leader) and the meeting was

limited to GS-14 supervisors. The agency concluded that complainant's

absence from the meeting did not cause him to suffer loss or harm with

respect to a term, condition, or privilege of his employment. Further,

the agency determined that there was no connection between this isolated

incident and any of the other employment matters raised in the complaint.

Agency No. 97-1695

Complainant initiated contact with an EEO Counselor on May 7, 1997.

On June 16, 1997, complainant filed a formal EEO complaint wherein he

claimed that he was discriminated against on the basis of his previous

EEO activity when management solicited the filing of a false EEO complaint

against him by a subordinate employee, and when management required that

he participate as a witness in the EEO investigation of that complaint

during the week of May 5-9, 1997.

In its final decision, the agency dismissed the claim concerning the

solicitation of a complaint against complainant on the grounds of res

judicata. The agency determined that complainant was barred from raising

this claim in the EEO complaint process based on his acceptance of the

offer of judgment in the civil action. The agency also dismissed the

claim involving complainant's required participation as a witness in an

EEO investigation on the grounds of failure to state a claim. The agency

determined that it was required to make complainant available and it

was complainant's duty to participate as a witness in the investigation

of an EEO complaint. Further, the agency determined that complainant

failed to establish that he was injured by the requirement that he submit

himself for interrogation by the EEO Investigator as a witness in the

EEO complaint filed against him by a subordinate employee.

In the aforementioned civil action, complainant set forth claims

concerning being the object of unwelcome sexual harassment at a sexual

harassment workshop; being subjected to a hostile work environment; the

Associate Deputy Assistant Secretary filed a report against him that

stated he was unstable and a threat to her and other employees; that

a proposed suspension was issued to him for incidents that occurred in

August 1994; that in August 1994, he was no longer Chief of a Division

of NAC, but rather Chief of a staff component; in September 1994,

his performance appraisal was downgraded by two levels without any

justification; that two of his subordinates were solicited to file EEO

complaints against him; that in October 1994, he was verbally castigated

in front of his peers without justification; in October 1994, he was

removed from his position as Chief of the ADP Division and was detailed to

another division; that in November 1994, a Administrative Board of Inquiry

was appointed to investigate charges against him; in December 1994, he

was excluded from meetings about ADP projects for which he was directly

responsible; in December 1994, an Inspector General investigation was

reopened and expanded in an effort to discredit him; that the Associate

Deputy Assistant Secretary harassed him over an extended period of time

with threatening and sometimes incomprehensible memos; that the Associate

Deputy Assistant Secretary has made numerous false allegations concerning

his competence, ability, and stability to other agency employees and

personnel and contractors outside the agency; that the Associate Deputy

Assistance Secretary repeatedly attempted to solicit information from

outside agencies and contractors in order to establish security violations

on his part; that in December 1994, the Acting Division Chief was asked

to move him out of the ADP Division; and that an agency attorney and

two non-government attorneys were utilized for the principal purpose of

assisting the Associate Deputy Assistant Secretary in getting rid of him.

The civil action was settled by a judgment order dated April 25, 1996.

Complainant accepted the agency's offer of judgment for $7,600 plus costs.

On appeal of both final decisions, complainant states that the agency

has continued to harass him. Complainant references several incidents

that occurred after the instant complaints were filed. With regard to

the agency's dismissal of those claims where he did not respond to the

agency's request for additional information, complainant contends that he

failed to respond because the agency's request was further harassment.

According to complainant, the agency knew that his claims were true and

it did not need additional documentation.

In response, the agency asserts that on appeal, complainant addressed

matters which occurred after the filing dates of the complaints or

involve matters not at issue in the complaints. The agency reiterates

that complainant was afforded an opportunity to provide additional

clarifying information concerning Agency No. 97-1433, but he failed to

respond to the request for such information.

ANALYSIS AND FINDINGS

Agency No. 97-1433

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29

C.F.R. �1614.103); �1614.106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 22, 1994).

The agency dismissed complainant's claim that he was not invited to a

managerial planning retreat on the grounds of failure to state a claim.

The agency determined that complainant failed to establish that he

suffered personal harm to a term, condition, or privilege of his

employment as a result of not being invited to the planning retreat.

After a review of the agency's final decision, it seems that the agency

has addressed the merits of the claim without a proper investigation

as required by the regulations. We find that the agency's articulated

reason for the action in question, i.e., that complainant was not invited

because he is a GS-13 Computer Specialist (Team Leader) and the meeting

was limited to GS-14 supervisors, goes to the merits of the complaint,

and is irrelevant to the procedural issue of whether he has stated

a justiciable claim under the regulations. See Ferrazzoli v. United

States Postal Service, EEOC Request No. 05910642 (August 15, 1991).

The Commission's federal sector case precedent has long defined an

"aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 22, 1994). In the present case, complainant alleged

that he was not able to attend a managerial retreat is an adverse

action affecting a term, condition, or privilege of his employment.

Since complainant alleged that this action was due to his race and in

reprisal for his prior protected activity, he has stated a claim under

the regulations. Accordingly, the agency's dismissal of this claim was

improper and is REVERSED.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims within a complaint when

the complainant alleged a continuing violation; that is, a series of

related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990).

A determination of whether a series of discrete acts constitutes a

continuing violation depends on the interrelatedness of the past and

present acts. Berry v. Board of Supervisors of Louisiana State Univ.,

715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).

It is necessary to determine whether the acts are interrelated by a

common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC

Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,

EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of

the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such

a nexus exist, complainant will have established a continuing violation

and the agency would be obligated to "overlook the untimeliness of the

complaint with respect to some of the acts" challenged by complainant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

Relevant to the determination are whether the acts were recurring or were

more in the nature of isolated employment decisions; whether an untimely

discrete act had the degree of permanence which should have triggered an

employee's awareness and duty to assert his or her rights; and whether the

same agency officials were involved. Woljan v. Environmental Protection

Agency, EEOC Request No. 05950361 (October 5, 1995).

The record reveals that complainant initiated contact with an EEO

Counselor on March 18, 1997. Complainant claimed in his complaint

that he has been subjected to discrimination on a continuing basis.

However, the specific incident dates referenced by complainant reflect

events that occurred more than 45 days before complainant initiated

contact with an EEO Counselor. Complainant referred to an assignment

of duties on November 19, 1996; performance appraisals on May 29,

1996, and December 20, 1996; reassignments on October 24, 1996,

and November 19, 1996; training on October 30, 1996; harassment on

December 6, 1996; hostile working conditions on August 5, 1994; reverse

discrimination on October 24, 1996; and retaliation on August 5, 1994.

Complainant described the discrimination as continuing, but except for

the managerial planning retreat discussed above, complainant failed

to identify a specific incident that occurred 45 days or less before

he initiated contact with an EEO Counselor. We note that complainant

was requested by the agency to clarify his complaint with regard to the

specific incidents at issue and the dates of the alleged discrimination.

On appeal, complainant acknowledges that he failed to respond to the

agency's request. Complainant states that he declined to respond because

the agency's request was further harassment, and that the agency knew

that his claims were true and it did not need additional documentation.

Upon review, we find that complainant did not contact an EEO Counselor

within 45 days of when the alleged acts of discrimination occurred.

Further, we find that the complaint does not set forth a continuing

violation as the incidents that occurred more than 45 days before

complainant's EEO contact are not related to the timely incident involving

complainant not being invited to the managerial planning retreat.

Complainant did not establish a nexus or common theme to link these

incidents. Moreover, the matters involving performance appraisals and

reassignments were separate and discrete actions that have a degree

of permanence which should have triggered complainant's awareness and

duty to assert his rights pursuant to the EEO process. Therefore, the

record does not support complainant's claim of a continuing violation.

Accordingly, the agency's dismissal of these claims of the complaint on

the grounds of untimely EEO contact was proper and is AFFIRMED.<2>

Agency No. 97-1695

The agency dismissed complainant's claim that management solicited the

filing of a false EEO complaint against him by a subordinate employee

on the grounds that the claim is res judicata. Under the doctrine

of res judicata, a final judgment rendered by a court of competent

jurisdiction on the merits of a claim is conclusive as to the rights

of the parties and constitutes an absolute bar to a subsequent action

involving the same claim. Montana v. United States, 440 U.S. 147,

153 (1979). Under the doctrine of collateral estoppel, "once an

issue is actually and necessarily determined by a court of competent

jurisdiction, that determination is conclusive in subsequent suits based

on a different cause of action involving a party to the prior litigation."

Montana v. United States, 440 U.S. at 153 (citing Parklane Hosiery Co.,

Inc. v. Shore, 439 U.S. 322, 326 n. 5 (1979)). Upon review of the civil

action filed by complainant, we note that complainant claimed that two

of his subordinates were solicited to file EEO complaints against him.

The civil action was settled on April 25, 1996, by a judgment order

in favor of complainant for $7,600 plus costs. We find in light of

the judgment order issued in the civil action that complainant was

barred under the doctrine of res judicata from pursuing the issue of

management soliciting the filing of a false EEO complaint against him

by a subordinate employee. Accordingly, the agency's dismissal of this

claim was proper and is AFFIRMED.

The agency dismissed the matter concerning complainant being required

to participate as a witness in the EEO investigation of the subordinate

employee's complaint against him on the grounds of failure to state

a claim. We note that it is the agency's responsibility, under Title

VII and the EEOC Regulations, to develop a complete and impartial

record upon which to make findings on the matters raised in written

complaints of discrimination. It is noted that complainant was named

as a responsible party in the subordinate employee's complaint, and,

as such, the requirement that complainant participate as a witness in

the EEO investigation was proper. Thus, we find that complainant is

not aggrieved with regard to this matter. Accordingly, the agency's

decision to dismiss this claim was proper and is AFFIRMED.

Finally, we note that on appeal, complainant raises incidents of alleged

harassment that occurred after the filing of the instant complaints.

Complainant is advised that if he wishes to pursue, through the EEO

process, the additional claims he raised for the first time on appeal,

he should promptly notify the agency that he wishes to amend the instant

complaint by the addition of these claims. See 64 Fed. Reg. 37, 644,

37, 656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.106(d)).

ORDER (E1199)

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claim within thirty (30)

calendar days of the date this decision becomes final. The agency shall

issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

January 19, 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 Equal Employment Assistant

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.

2In light of our affirmance of the agency's dismissal of these claims

on the grounds of untimely EEO contact, we need not address the agency's

alternative grounds for dismissal.