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).