01992981
08-03-2000
Lynda L. Galligan, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Lynda L. Galligan v. Department of Defense
01992981
August 3, 2000
Lynda L. Galligan, )
Complainant, )
)
v. ) Appeal No. 01992981
) Agency No. 98OHA064
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
______________________________)
DECISION
On March 1, 1999, complainant filed a timely appeal with this Commission
from a final agency decision 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).
The record shows that Complainant sought EEO counseling on March 24,
1998, claiming that she had been discriminated against on the basis
of sex when she was subject to harassment, intimidation and abuse,
specifically when:
(1) she does not know who her supervisor is;
(2) she does not have clearly defined performance factors;
(3) she has not been given adequate training, development, and feed back;
and
(4) she was given an unfair performance appraisal for the period August
1996 to July 1997.
Subsequently, Complainant filed a formal complaint claiming that she had
been discriminated against on the basis of sex when she was subjected
to continuous harassment, intimidation, and abuse from August 1996 to
January 29, 1998, specifically when:
(a) from August 1996 to January 29, 1998, she was subjected to
inadequate performance factors, no feedback or guidance, unorganized
process/procedures, unprofessional insinuation/accusations, and
management practices;
(b) on July 2, 1997, her performance appraisal rating for the period
August 4, 1996 to June 30, 1997, was rated as Fully Successful;
(c) on January 29, 1998, her supervisor, in a closed door meeting,
screamed at her in an intimidating, harassing, and abusive tone; and
(d) she was denied awards, promotions and special benefits as a result
of this treatment.
The agency dismissed claims (a) - (c) on the basis of untimely EEO
counselor contact. The agency also determined that claims (a) - (c)
are not part of a continuing violation. Concerning claim (d), the agency
advised Complainant to contact the EEO counselor because she had failed
to bring it to the attention of the counselor during the inquiry of her
informal complaint.
The Commission determines that the agency's decision to dismiss claims
(a) - (c) for failure to timely contact an EEO Counselor was proper,
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)).
The record shows that the claims raised by Complainant allegedly occurred
from August 1996 to January 29, 1998. Her initial EEO counselor contact
took place on March 24, 1998, eight days beyond the 45-time limit for the
most recent matter: the January 29, 1998 incident that is the subject of
claim (c). Complainant has Complainant has failed to present adequate
justification for extending the limitation period beyond forty-five days.
Regarding the agency's continuing violation analysis, the Commission
finds that it is not necessary to determine whether complainant has
established a continuing violation in claims (a) - (c). Even if claims
(a) - (c) were part of a continuing violation, none of the alleged
matters occurred within forty-five days of the initial EEO Counselor
contact. Accordingly, the agency's decision to dismiss claims (a) -
(c) for failure to initiate contact with an EEO Counselor in a timely
fashion was proper and is AFFIRMED.
Moreover, the Commission determines that the agency properly found that
the matter addressed in claim (d) was not raised during EEO counseling,
and is not like or related to matters for which complainant had undergone
EEO counseling.
Accordingly, the final agency decision 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:
August 3, 2000
DATE Carlton M. Hadden, 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 after it was mailed. I certify
that this 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.