Shirley J. Danner, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01984504 (E.E.O.C. Oct. 20, 1999)

01984504

10-20-1999

Shirley J. Danner, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.


Shirley J. Danner v. Department of Defense

01984504

October 20, 1999

Shirley J. Danner, )

Appellant, )

)

v. ) Appeal No. 01984504

) Agency No. 98-030

William S. Cohen, )

Secretary, )

Department of Defense, )

(Army and Air Force )

Exchange Service), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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. The final agency decision was received by

appellant on April 8, 1998. The appeal was postmarked May 7, 1998.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

Appellant contacted an EEO Counselor on September 29, 1997, alleging

that she was discriminated against when:

(1) on or about May 6, 1996, she was transferred into a position as a

UA-7 and assumed the duties and responsibilities formerly performed by

a male grade UA-11;

(2) from June 1997 through December 1997, certain duties were taken away

from her;

(3) in September 1997 a desk audit was performed on her position, but

her position was not changed;

(4) from August 1997 through December 1997 she was not given free software

training; and

(5) on September 22, 1997 and December 4, 1997 she was watched and timed

for lunches and breaks.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on December 8, 1997, appellant filed a formal complaint

alleging that she was the victim of unlawful employment discrimination

on the bases of sex and reprisal.

On April 1, 1998, the agency issued a final decision (FAD) accepting for

investigation allegations (2), (3), (4) and (5), but dismissing allegation

(1) as untimely. Specifically, the agency determined that appellant

had previously received counseling in April 1996 concerning allegation

(1). The FAD found further that informal efforts to resolve appellant's

concerns regarding allegation (1) failed, and on June 27, 1996, appellant

was issued a Notice of Right to File a Discrimination Complaint.

The record indicates that appellant failed to file a formal complaint

concerning the matter raised in allegation (1) following receipt of the

Notice of Right to File a Discrimination Complaint in June 1996. On March

9, 1997, appellant indicated that she did not pursue the EEO complaint

process in June 1996, because she felt "railroaded" and that she "went

on vacation and was on sick leave" The FAD dismissed allegation (1)

pursuant to 29 C.F.R. �1614.107(b) for failure to comply with applicable

time limitations.

Upon review, we find that the agency's decision dismissing allegation

(1) of appellant's complaint was proper. Here, the doctrine of laches

is applicable. Appellant first contacted an EEO Counselor regarding the

matter raised in allegation (1) in April 1996. In June 1996, she received

a notice of her right to file a formal complaint. Over one year later,

in September 1997, appellant attempted to resurrect her claim when she

contacted an EEO Counselor on the matter addressed in allegation (1).

Thereafter, she filed the instant complaint. The Commission finds that

appellant failed to diligently pursue her claim on the matter raised in

allegation (1). See Robinson v. Peace Corps, EEOC Appeal No. 01940291

(May 12, 1994); request to reopen denied, Request No. 05940710 (May

2, 1995). We do not find that appellant's assertions regarding being

"railroaded" and being on vacation and sick leave constitute adequate

justification for the delay in pursuing the matter raised in allegation

(1). Accordingly, the agency's decision to dismiss allegation (1)

was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

10/20/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations