Wallace Cobb, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 25, 2000
01a03646 (E.E.O.C. Jul. 25, 2000)

01a03646

07-25-2000

Wallace Cobb, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Wallace Cobb v. Department of the Navy

01A03646

July 25, 2000

.

Wallace Cobb,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A03646

Agency No. 00-65886-015

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(2)), for untimely EEO Counselor contact.<1>

The record discloses that in April 1999, complainant contacted the EEO

office regarding his suspension for unauthorized leave. Complainant

did not pursue formal EEO counseling at that time, but did sign a

statement acknowledging his understanding of the 45 day time limit for

EEO counselor contact. Subsequently, complainant was again charged with

another unauthorized absence which resulted in a third suspension and his

eventual removal, which was effective on August 6, 1999. Thereafter,

complainant filed an appeal with the Merit System Protection Board

(MSPB), which was dismissed as untimely on October 14, 1999.

Complainant then filed an EEO complaint with the agency, with a postmark

date of January 8, 2000.<2> Therein he alleged that his suspensions

and removal for unauthorized leave were motivated by discriminatory

animus based on his race and sex. On March 10, 2000, the agency issued

complainant a �show cause� letter requesting an explanation for his late

EEO Counselor contact. Complainant responded in a letter dated March 21,

2000, which indicated that he had contacted the EEO office in the past,

but that they would not accept his complaint, and felt that the same

thing would happen regarding the instant complaint. He also claimed

that he was never informed of the time limit until receipt of the �show

cause� letter. Finally, complainant indicated that he was untimely

because his union representative informed him that the union could not

provide him with representation during the EEO process.

On appeal, complainant submits the March 21, 2000 letter as his appeal

statement. The agency again avers that complainant clearly was aware

of the 45 day time limit by virtue of his signed statement, as well as

posters and EEO tapes present in the work place, and that he presented

no compelling reasons for tolling the time limit.

The Commission agrees with the agency that no persuasive arguments and

evidence have been presented to warrant an extension of the time limit

for initiating EEO contact. Instead, the evidence clearly demonstrates

that complainant knew of the time limit, and we find that neither

concern that the EEO office might not accept his complaint, nor the

lack of union representation, are sufficient reasons for untimely EEO

contact. Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.<3>

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 25, 2000

__________________

Date

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.

2According to the record, complainant did not seek EEO counseling prior

to filing his formal complaint, such that the agency used the postmark

date of the complaint as the date of initial EEO counselor contact.

3We also note that complainant's removal claim could be dismissed on the

alternative grounds that it is a collateral attack on the MSPB process,

given that the MSPB had jurisdiction over this matter, and rendered

a determination prior to complainant filing the instant complaint.

See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,

1998).