Patricia E. Dowaliby, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01990931 (E.E.O.C. Jan. 19, 2000)

01990931

01-19-2000

Patricia E. Dowaliby, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Patricia E. Dowaliby v. Department of the Navy

01990931

January 19, 2000

Patricia E. Dowaliby, )

Complainant, )

)

v. ) Appeal No. 01990931

) Agency No. 98-001-02-012

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On November 12, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

October 15, 1998, 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. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of sex

(female), and reprisal (prior EEO activity) when:

from October 27, 1997 to February 28, 1998 she was not provided the same

resources as a male employee to solve nuclear problems;

from October 27, 1997 to February 28, 1998 she was ostracized and excluded

from management decisions in her position in the Security Department;

on January 2, 1998, her temporary promotion to GM-14 was terminated one

day early;

during the latter part of 1997, she was denied a leave waiver to restore

her annual leave; and

she was not told until February 6, 1998 that the agency considered her

to have a performance problem.

The agency dismissed allegations (a),(b),(c), and (d) of complainant's

complaint pursuant to Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1),

on the grounds that the matters raised had been previously raised by

complainant in a prior complaint. The FAD also dismissed allegation (e)

of complainant's complaint pursuant to Volume 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2),

for untimely contact with an EEO Counselor.

Specifically, the agency determined that allegations (a) through

(d) of complainant's complaint had been raised in a prior complaint

(Complaint No. DON 98-00102-007). With respect to allegation (e),

the agency determined that complainant's EEO contact on August 13,

1998 concerning an incident occurring on February 6, 1998 was beyond

the applicable time period for seeking counseling.

On appeal, complainant does not challenge the agency's dismissal of

allegations (a), (b), (c) and (d), acknowledging that the allegations

were consolidated into complaint, DON-98-00102-005, and accepted for

investigation. Since complainant does not challenge the agency's

dismissal of allegations (a) - (d), we will not address them here.

A review of the record reveals that complainant alleges that because

of her sex, and in reprisal for her prior EEO activity, she has been

subjected to a hostile work environment. Specifically, allegation (e),

alleges that the agency engaged in discriminatory conduct when it did not

inform complainant until February 6, 1998 that she was thought to have a

performance problem. Complainant contends that this perception of her

contributed to the hostile work environment to which she alleges she

was subjected and ultimately resulted in her constructive termination.

The record indicates, however, that despite the fact that complainant

filed discrimination complaints in February and July of 1998, she did

not seek counseling concerning allegation (e) until August 13, 1998,

6 months after the alleged incident.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor

within the time limits, or for other reasons considered sufficient by

the agency or the Commission. Complainant does not indicate that she

was unaware of the time limitation for counselor contact, nor does she

suggest that she was prevented for any reason from seeking counseling in

a timely fashion. Rather, in complainant's appeal statement she asserts

that she has repeatedly articulated her charges of ongoing discrimination

by the agency. Complainant maintains further on appeal, that the agency

has not been prejudiced in anyway, by the lapse in time of several months

in which it took complainant to seek counseling concerning allegation (e).

The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness. See Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).

The Commission is not persuaded by complainant's assertions on appeal

regarding the reasons for her lengthy delay in seeking counseling

concerning allegation (e). Accordingly, the agency has met its burden

concerning the issue of untimeliness. The agency's decision dismissing

allegation (e) on the grounds of untimely EEO Counselor contact was

proper and is AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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:

January 19, 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