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