01A10287_r
05-08-2001
Bertha Lawson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Bertha Lawson v. Department of Veterans Affairs
01A10287
May 8, 2001
.
Bertha Lawson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10287
Agency No. 99-0622
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. Complainant sought EEO counseling on February 5,
1999, claiming that she had been discriminated against on the basis of
disability when the agency denied her request for leave without pay
(LWOP) and forced her to retire in December 1996.
Subsequently, complainant filed a formal complaint claiming that she
had been discriminated against on the bases of sex, disability, and in
reprisal for prior protected activity when:
(1) on January 12, 1995, she was subject to harassment when she was
offered a reassignment to a medical clerk position and she was told that
if she declined the offer, her OWCP benefits could be terminated;
(2) on April 24, 1995, she was denied advance sick leave;
(3) on July 11, 1996, a memorandum was sent to the Chief of Staff denying
her LWOP request. The memorandum recommended separation;
(4) on August 9, 1996, a corrected letter was sent denying LWOP from
August 5, 1996 to August 12, 1996;
(5) on August 29, 1996, in her response to the July 11, 1996 memorandum,
complainant noted that ACOS/Nursing failed to acknowledge her outstanding
performance awards and contributions for the 1994-95 performance period;
and
(6) she was forced to retire on December 17, 1996.
Complainant further claimed that she did not contact an EEO Counselor
before February 1999, because she had been retired since 1996, and she
was unaware of the existence of the Office of Resolution Management (ORM).
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact. The agency rejected complainant's
contention that she was unaware of the existence of ORM, and therefore,
could not contact an EEO Counselor earlier. The agency noted that
complainant was aware of her EEO rights and duties because she had filed
a prior EEO complaint on March 20, 1995.
On appeal, complainant contends, inter alia, that her complaint was
timely because the agency has a �non-stop� practice of discriminating
against disabled and African American employees.
The record discloses that the alleged discriminatory events occurred from
January 12, 1995 through December 17, 1996, but that complainant did not
initiate contact with an EEO Counselor until February 5, 1999, which is
well beyond the forty-five (45) day limitation period. The record shows
that complainant was, or should have been aware of the EEO process,
because she had filed a prior complaint in March 1995. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Moreover, we find
that complainant's claims do not constitute a timely continuing violation
since none of the matters addressed in claims 1 - 6 occurred within 45
days of the last alleged discriminatory incident in December 1996.
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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, Director
Office of Federal Operations
May 8, 2001
__________________
Date