01A02436
05-22-2000
Kathleen Duncan, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Kathleen Duncan v. Department of Veterans Affairs
01A02436
May 22, 2000
Kathleen Duncan, )
Complainant, )
)
v. )
) Appeal No. 01A02436
Togo D. West, Jr., ) Agency No. 99-2314
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) pertaining to her 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> The Commission accepts
the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. �1614.405).
On February 1, 1999, complainant contacted the EEO office regarding
incidents of discrimination by a co-worker. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on April 30,
1999, complainant filed a formal complaint based on race, color and sex.
The agency issued a FAD, dated October 18, 1999, dismissing the
complaint on the grounds that it was untimely filed. Specifically,
the agency determined that complainant was issued a Notice of Right to
File on February 19, 1999. Complainant, however, did not file a formal
complaint until April 30, 1999. According to the agency, complainant
failed to respond to their request for information concerning the
untimely filing. Therefore, the agency also dismissed the complaint
for failure to cooperate.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,
in pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.106), which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving notice of the right to do so.
Here, the record contains a copy of the Notice of Right to File A
Discrimination Complaint signed and dated by the EEO Counselor and
complainant on February 19, 1999. Further, the document contains a
handwritten notation by complainant stating: "I signed this form as
you see [sic] can see on 2/19/99 at 10:00 a.m." The complaint, although
undated, was received by the agency on April 30, 1999. Therefore, we find
that complainant filed the formal complaint well beyond the fifteen day
time limitation set forth in the Notice. Complainant has not presented
any reason for waiving or tolling the time limit. We agree with the
agency's dismissal of the complaint on the grounds that the complaint
was untimely filed.
Because of our disposition we do not consider whether the complaint was
properly dismissed for failure to cooperate.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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:
May 22, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.