Victoria Tan-Gatue, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01993905 (E.E.O.C. Jul. 27, 2000)

01993905

07-27-2000

Victoria Tan-Gatue, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Victoria Tan-Gatue, )

Complainant, )

)

v. ) Appeal No. 01993905

) Agency No. 98-3736

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's March 19, 1999 decision dismissing

the complaint on the grounds of untimely EEO Counselor contact and because

one of its issues had not been raised with the EEO Counselor, is 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)).<1>

The record shows that Complainant sought EEO counseling on October 13,

1998, claiming that she had been discriminated against on the bases

of race and physical disability when on July 29, 1998, she received a

letter from the Office of Worker's Compensation (OWCP) which stated that

a decision dated May 21, 1998, from the Employees Compensation Appeals

Board, recommended that she was totally disabled for the period May 26,

1995 to July 11, 1995, therefore she was entitled to compensation.

Complainant further claimed that the Los Angeles Outpatient Clinic

deliberately failed to provide information to OWCP in a timely manner,

which delayed her compensation. The record shows that Complainant

informed the EEO Counselor that she had filed prior EEO complaints.

Subsequently, Complainant filed a formal complaint claiming that she

had been discriminated against on the bases of race, national origin,

reprisal, and physical disability when:

(1) on August 4, 1998, she received a letter from the Department of

Labor which stated that it had tried to obtain her pay rate several

times and had not received a reply from the agency; and

(2) her employment was terminated.

By letter dated February 19, 1999, the agency requested that Complainant

explain the disparity between the date that she provided in her informal

EEO complaint (July 29, 1998) and the date that she provided in her

formal complaint (August 4, 1998), and to explain her delay in contacting

an EEO Counselor. The agency also asked Complainant to explain why

she had failed to raise the termination issue with the EEO counselor.

Complainant was advised that she needed to provide the requested

information within 15 calendar days of her receipt of the request.

On March 19, 1999, the agency issued a final decision dismissing

claim (1) on the grounds of untimely EEO counselor contact and on the

alternative grounds of failure to cooperate. The agency found that

after Complainant raised the August 4, 1998 date in her formal complaint,

a written request for additional information was sent to her, to which

she failed to respond. Based on that finding, the agency concluded that

the discriminatory event, (the letter received from OWCP) took place

on July 29, 1998, and her initial EEO Counselor contact on October 13,

1998, was beyond the 45-day time limit provided by EEOC Regulations.

Claim (2) was dismissed on the basis that it had not been brought to

the attention of the EEO counselor.

On appeal, Complainant contends, inter alia, that �out of fear that if

she were to file a complaint the agency would continue to withhold the

requested information and obstruct, interfere with or delay payment of

compensation monies to her, [she] delayed contacting an EEO counselor�.

A review of the record persuades the Commission that the dismissal of

claim 1 was appropriate. We have consistently held that a Complainant's

fear of reprisal is an insufficient justification for extending the time

limitation for contacting an EEO counselor. See Parker v. Department

of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995).

The matter addressed in claim 1 occurred in late July 1998, and

Complainant's initial EEO Counselor contact occurred on October 13, 1998.

Complainant has failed to present adequate justification for extending

the limitation period beyond forty-five days. Accordingly, the agency's

decision to dismiss claim 1 for untimely EEO Counselor contact was proper

and is AFFIRMED. Because of our decision to affirm the dismissal of

claim 1 for the reason stated herein, we find it unnecessary to address

the agency's decision to dismiss this claim on alternative grounds.

Regarding claim 2, the record reflects that Complainant did not

undergo EEO counseling regarding her termination from agency employment.

The issue of her termination, moreover, is not like or related to matters

for which she had undergone EEO counseling. Accordingly, the agency's

decision to dismiss claim 2 was proper and is 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:

July 27, 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 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

1 On 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.