01a14567
01-15-2002
Gereka M. Custis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Gereka M. Custis v. Department of Defense
01A14567
January 15, 2002
.
Gereka M. Custis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A14567
Agency No. CLNORF01001
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 March 9, 2001, claiming that she
had been discriminated against when on January 3, 2001, (1) her desk was
moved without prior notice; (2) her supervisor yelled at her and pounded
on a desk; and (3) she was denied a performance award. Subsequently,
complainant filed a formal complaint on the bases of disability and in
reprisal for prior protected activity, regarding the matters for which
she underwent EEO counseling, discussed above. Complainant stated that
�mentally, [she was] not able to go through the EEO process [because
she was in] no condition to think clearly and [her] condition was not
getting better�.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact after finding that complainant had sought EEO
counseling �19 days beyond the 45-day time frame�.
On appeal, complainant contends that she was unaware of the 45-day time
limit and that she was never advised by the Human Resources office to seek
EEO counseling, even though she sought their assistance. In response,
the agency contends that complainant had access to the electronic
bulletin board where the agency disseminates its EEO policy with the
pertinent time limitations. The agency further contends that posted on
all official bulletin boards are EEO posters with the applicable time
limits, and submits copies of the EEO posters.
The record discloses that the alleged discriminatory event occurred on
January 3, 2001, but that complainant did not initiate contact with
an EEO Counselor until March 9, 2001, which is beyond the forty-five
(45) day limitation period. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Accordingly, the agency's final decision
dismissing the complaint 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
January 15, 2002
Date