01992530
04-11-2000
Laura Dean, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Laura Dean, )
Complainant, )
)
v. ) Appeal No. 01992530
) Agency No. 98-1519
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's January 20, 1999 final decision
dismissing complainant's complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37656
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.107(a)(2)).<1>
The record shows that complainant sought EEO counseling on February 17,
1998, alleging that she had been discriminated against on the basis of sex
(female) when: (1) she was sexually harassed from 1991 through 1996; and,
(2) the continued harassment made her retire effective March 30, 1996.
Subsequently, complainant filed a formal complaint regarding these
issues.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact. The agency found that
although complainant had raised the sexual harassment issue with an
EEO counselor on June 15, 1994, she decided not to pursue said claim.
The agency further found that because complainant waited almost two years
after the effective date of her retirement before seeking EEO counseling
the doctrine of laches was applicable.
On appeal, complainant does not dispute that she sought EEO
counseling on June 15, 1994. Rather, she claims that was never
informed that she could remain anonymous nor was she asked to
sign an intake form. Complainant further contends that the EEO
counselor told her that �the complaint would not be worth the paper
it was written on�. Finally, complainant claims that she was too
afraid to file a complaint without being able to remain anonymous.
The Commission has consistently held that complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990).
In the present case, complainant, allegedly sought EEO counseling in 1994.
The complainant stated that she did not pursue the EEO complaint process
at that time because she was purportedly afraid and was misinformed
about her rights. In March 1996, complainant retired from her job.
Two years later she sought EEO counseling, alleging that she was sexually
harassed from 1991 through 1996, and that the harassment forced her to
retire in March 1996. Assuming arguendo that complainant was afraid
to seek EEO counseling and that she was misinformed about her rights,
she still did not pursue her claim for approximately two years after
retiring in March 1996 and being outside the authority and influence of
the alleged harasser.
We find that complainant's arguments are not sufficient to toll the time
limit for seeking EEO counseling. We find that complainant failed to
act with due diligence regarding her claim. Accordingly, the agency's
decision dismissing the complaint is 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 11, 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 1
On 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.