01A22040_r
06-07-2002
Deede R. Rhodes, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Deede R. Rhodes v. Department of the Navy
01A22040
June 7, 2002
.
Deede R. Rhodes,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22040
Agency No. 99-00250-017
Hearing No. 120-A1-4508X
DECISION
Complainant appealed to this Commission from the agency's January 30,
2002 final decision. In her complaint, complainant alleged discrimination
on the basis of race (African-American) when:
On June 11, 1998, and June 16, 1998, complainant was verbally abused;
On November 20, 1998, the warehouse manager terminated complainant's
flexible assignment without any explanation; and
For approximately one year prior to her termination, the warehouse
supervisor treated complainant differently from other employees.
In an April 9, 1999 decision, the agency dismissed the complaint for
untimely counselor contact. On appeal, the Commission reversed the
agency's dismissal, and remanded the claims for further processing.
See Rhodes v. Department of the Navy, EEOC Appeal No. 01994436 (January 4,
2001). The Commission found that complainant contacted an EEO Counselor
on January 29, 1999. The Commission found no evidence in the record to
show that complainant had actual or constructive notice of the forty-five
day time limit for EEO Counselor contact. See id.
On remand, the agency accepted the claims for investigation. After
complainant requested a hearing with an EEOC Administrative Judge (AJ),
the agency filed a motion to dismiss. The AJ granted the agency's motion,
and dismissed the claims. The agency adopted the AJ's findings in its
January 30, 2002 final decision.
In its motion for dismissal, the agency outlined the statements of several
employees, all stating that EEO information was posted on several bulletin
boards in complainant's duty station. The Report of Investigation
included a statement notifying employees, inter alia, that they must
raise discrimination claims with an EEO Counselor within forty-five days.
Officials contended that a �photo array� of EEO Counselors with phone
numbers was posted, but was unavailable since the facility closed.
Once an AJ takes jurisdiction over a case, he or she may dismiss
complaints pursuant to 29 C.F.R. � 1614.107(a), upon an agency's motion
to dismiss. See 29 C.F.R. � 1614.109(b). Complaints that fail to
comply with applicable time limits may be dismissed. See 29 C.F.R. �
1614.107(a)(2). Although the forty-five day time limit may be extended
when an individual shows that she was not notified or otherwise aware of
the limit, the agency has provided ample evidence that EEO information was
posted on several bulletin boards throughout complainant's duty station.
We find, therefore, that complainant had constructive knowledge of the
applicable time limits. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995). The Commission finds that
the agency's dismissal was proper.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 7, 2002
__________________
Date