01996073
07-06-2000
Valerie H. Tournas, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Valerie H. Tournas, )
Complainant, )
)
v. ) Appeal No. 01996073
) Agency No. FDA-F-030-99
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
Complainant first contacted an EEO Counselor on October 8, 1999, and
subsequently executed an agreement to extend the counseling period
on November 23, 1999. During this time complainant was engaged in an
on-going settlement attempt of her complaint. However, although these
settlement attempts continued, the EEO counseling extension expired
without resolution of complainant's concerns. Therefore, on January
14, 1999, at a meeting with the EEO Manager and her EEO Counselor,
complainant was provided with a Notice of Final Interview and Right
to File a Discrimination Complaint, which specified the 15-day filing
requirement. Complainant signed this Notice on January 19, 1999, while
continuing to engage in settlement efforts.
Thereafter, when the continued settlement attempt still did not culminate
in a successful resolution, complainant filed a formal complaint on
April 20, 1999, alleging that she was subjected to discrimination and
harassment on the basis of sex when:
On September 30, 1998, her supervisor accused her of keeping the walk-in
refrigerator door open for excessive periods;
On September 30, 1998, her supervisor spoke to her in a hostile manner
in a discussion involving the review of a voluntary recall; and,
On September 16, 1998, her supervisor spoke to her in a hostile manner
and demanded the return of a copy of a manuscript.
In its FAD, the agency dismissed the complaint as untimely, finding that
complainant was provided with the 15-day filing requirement in the Notice
of Final Interview and Right to File a Discrimination Complaint, which
she signed on January 19, 1999, and yet did not file her complaint until
nearly four months later. The FAD also noted complainant's argument
that she delayed filing because of the ongoing settlement attempt,
but found that this was not sufficient to excuse the late filing.
The FAD additionally refuted complainant's argument that after the
settlement attempt failed in April 1999, the EEO Manager told her that
she could file a complaint if she did so within 24 hours, finding that
notwithstanding this statement, complainant had notice of the 15-day
filing requirement in January 1999, but nonetheless delayed filing.
In her appeal statements, complainant again contends that she did not
file a timely complaint because she assumed that a resolution would be
made, and that the EEO Manager told her that she could still file the
complaint in April 1999, if she did so within 24 hours.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that
an agency shall dismiss a complaint which fails to comply with the
applicable time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.106), which,
in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving notice of the right to do so. However, the Commission
regulations governing computation of time limits allow for waiver and/or
equitable tolling under 29 C.F.R. � 1614.604(c), where complainant sets
forth evidence or argument sufficient to justify tolling the time limit.
Here, we find that complainant has failed to set forth sufficient
evidence or argument to justify tolling the time limit in this matter.
In reviewing the record, we note that the EEO Manager provided two
memoranda, dated May 24, 1999, and June 2, 1999, explaining that
complainant was provided with the Notice of Final Interview and Right to
File a Discrimination Complaint in the EEO Manager's office with the EEO
Counselor present, to ensure that complainant understood the requirements
for filing her complaint in light of the on-going settlement attempt.
We note that complainant does not contend that she was misled about
the 15-day filing requirement, or that she was otherwise confused about
its applicability because of the settlement attempt. She states only
that she did not file the complaint within the 15- day period because
she �assumed that resolution would be made.� However, in light of the
special effort to clarify the filing requirement, and complainant's
admitted knowledge and understanding of this requirement, we do not
find that her stated reason is sufficient to waive the time period.
Accordingly, we find that the agency properly DISMISSED the instant
complaint, and we AFFIRM the FAD.
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.