01990654
10-08-1999
Joseph E. Rudolph, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joseph E. Rudolph, )
Appellant, )
)
v. )
) Appeal No. 01990654
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On October 27, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated October 5, 1998, dismissing his
complaint pursuant to 29 C.F.R. �1614.107(b). Accordingly, the Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
On May 21, 1998, appellant filed a formal complaint alleging that he
was subjected to discrimination on the bases of race (Black), age
(d.o.b. October 14, 1947) and disability (50% disabled veteran).
The agency defined the allegations as follows:
Assignment of duties occurring on January 9, 1998, when the agency
did not act on appellant's request for accommodation following his
on-the-job injury;
Non-sexual harassment beginning on January 9, 1998, when for a period
of approximately 4 days appellant was sent home because the agency
could not immediately accommodate the medical restrictions imposed by
appellant's attending physician. Appellant would receive calls at home
to check on his status, and appellant considered these calls to be a
form of harassment;
Reassignment occurring on January 9, 1998, when appellant was placed
in a light-duty position that did not take into account the nature of
his on-the-job injuries; and,
Working conditions occurring on January 9, 1998, when appellant was
instructed to work in a booth that had no heat (winter conditions),
and no provisions were made for regular relief to afford appellant the
opportunity to use restroom facilities.
The agency dismissed appellant's allegations on the grounds that the
complaint was untimely filed. The FAD stated that appellant was issued
a Notice of Final Interview on March 17, 1998. The formal complaint
was not filed until May 21, 1998, well beyond the fifteen (15) day time
limitation. The agency also rejected appellant's reason for the delay,
finding that no extension of counseling had been granted. Further, the
agency indicated that even if appellant had been granted a thirty (30)
day extension, appellant's May 21, 1998 filing would still be untimely.
EEOC Regulation 29 C.F.R. � 1614.105(d) requires that after a complainant
contacts an EEO Counselor, and the matter has not been resolved, �the
aggrieved person shall be informed in writing by the Counselor ... of the
right to file a discrimination complaint.� The notice shall inform the
complainant of the right to file a discrimination complaint within 15 days
of receipt of the notice. 29 C.F.R. �1614.105(d). A complaint must be
filed within 15 days of receipt of the notice. 29 C.F.R. �1614.106(b).
EEOC Regulation 29 C.F.R. � 1614.107(b) provides that an agency shall
dismiss a complaint that fails to comply with the time limits contained
in � 1614.106.
The record reveals that on March 17, 1998 appellant signed the Notice
of Final Interview, which informed him that if he chose to file a formal
complaint he had to do so within 15 calendar days. The formal complaint
was filed on May 21, 1998. The Counselor's Report indicates that informal
attempts at a resolution were made by appellant and an agency official.
Appellant contends that he signed a thirty day extension for informal
complaint processing and that during this time period he attempted to
resolve the matter with the Director. On appeal, the agency states
that they have no documentation that an extension was either requested
or granted. We find no indication in the record that an extension
was granted or that the EEO office informed appellant that he could
delay filing his formal complaint pending the outcome of settlement
negotiations. Therefore, we find that the agency properly dismissed
the complaint for untimely filing. Accordingly, the agency's decision
dismissing appellant's complaint 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. 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:
October 8, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations