01982489
04-01-1999
Anthony Aspaas, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Anthony Aspaas, )
Appellant, )
)
v. ) Appeal No. 01982489
) Agency No. IHS-020-98
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his 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. Appellant alleged that
he was discriminated against on the bases of race (American Indian),
national origin (Navajo) and in reprisal for prior EEO activity when he
was terminated from his position as a Registered Nurse on June 28, 1996.
In its FAD, the agency dismissed appellant's complaint pursuant to 29
C.F.R. � 1614.107(b) for failure to initiate timely EEO contact.
Appellant filed a prior complaint on June 17, 1996, three days before
he received a Notice of Termination on June 20, 1996. Appellant's
prior complaint was dismissed by the agency for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a). On appeal, the Commission
affirmed the agency's dismissal, but noting that appellant presented his
termination as a new allegation on appeal, advised appellant to contact
an EEO counselor if he wished to pursue that allegation further. Aspaas
v. Department of Health and Human Services, EEOC Appeal No. 01970268
(August 22, 1997). Appellant's instant complaint concerns his termination
and is the subject of this appeal.
When a new allegation is raised on appeal, the Commission has found that,
provided an appellant makes contact with an EEO counselor within fifteen
(15) days of receiving the Commission's decision, the agency shall
consider the date which appellant first raised the new allegation on
appeal to be the date of appellant's EEO contact regarding the new
allegation, unless appellant raised the allegation at an earlier
date. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action.
Appellant's termination became effective on June 28, 1996. In order to
comply with the applicable time limit contained in � 1614.105(a)(1),
appellant would have had to initiate EEO contact by Monday, August
12, 1996. The record establishes that the earliest contact appellant
made regarding his termination occurred when he raised the allegation
on appeal. Appellant filed his appeal on October 7, 1996. Therefore,
his contact was untimely.
Appellant contends that the time limit should be waived because he was
subjected to a continuing violation. The Commission has determined that
the normal time limit for contacting an EEO counselor may be suspended if
a continuing violation is demonstrated. Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). A continuing
violation has been defined as a series of related discriminatory
acts, one of which falls within the time period for contacting an
EEO counselor. McGivern v. United States Postal Service, EEOC Request
No. 05901150 (December 28, 1990).
Appellant fails to establish that he was subjected to a series of related
discriminatory acts. The only alleged incident of discrimination before
the Commission is appellant's termination. Therefore appellant fails
to establish that he was subject to a continuing violation.
Moreover, the record establishes that appellant was knowledgeable about
the EEO process and the time limits for filing a complaint and that
he was suspicious of discriminatory activity at the time he received
his Notice of Termination. Therefore, the Commission concludes that
there are no extenuating circumstances which would excuse appellant's
failure to initiate timely contact with an EEO counselor with regard to
his termination.
Accordingly, we find that the agency properly dismissed appellant's
complaint for failure to initiate timely EEO contact, and we AFFIRM
the FAD.
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:
April 1, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations