Joseph E. Rudolph, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01990654 (E.E.O.C. Oct. 8, 1999)

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