Ilean Galvez, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 21, 2001
01A11148_r (E.E.O.C. Nov. 21, 2001)

01A11148_r

11-21-2001

Ilean Galvez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Ilean Galvez v. Department of Veterans Affairs

01A11148

November 21, 2001

.

Ilean Galvez,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A11148

Agency No. 200G-912

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.

The record shows that complainant, through her attorney, sought EEO

counseling on August 18, 2000, claiming that she had been discriminated

against on the basis of sex when she was subjected to continuous sexual

harassment by her first level supervisor from February 1999, through

March 2000. Complainant further claimed that after repeatedly asking

her supervisor to stop harassing her, she realized that he would not

cease and she therefore decided to speak to the Housekeeping Foreman,

her second-level supervisor and her supervisor's superior. Complainant

stated that she was told by the foreman that the supervisor was only

joking. She argued that at that time she decided to inform the Chief of

Facility Management (Chief) about the treatment she was receiving from

both men. Complainant finally claimed that although she and her husband

made repeated phone calls to the Chief, he never returned their messages.

Finally, complainant claimed that at this time she realized the harassment

would not stop and that she was forced to resign from her position in

March 2000.<1>

Complainant subsequently filed a formal complaint claiming that she was

sexually harassed from February 1999, to March 2000, and forced to resign

when the agency failed to take action against the harasser. By letter

dated October 16, 2000, the agency requested additional information from

complainant concerning her complaint.

In her response dated October 26, 2000, complainant stated that she called

the Chief in February 2000, on March 16, 2000, and twice on March 17,

2000, and left specific messages about the sexual harassment but that

her calls were never returned. She further stated that although she

specifically stated that the reason for leaving her employment was

the sexual harassment against her, she was not advised to seek EEO

counseling. Finally, she claims that she informed her second-level

supervisor about the harassment in July and August 1999, but that he

dismissed the supervisor's conduct as a joke.

On November 13, 2000, the agency issued a final decision dismissing

the complaint for untimely EEO Counselor contact after finding that

complainant failed to seek EEO counseling within 45 days of the alleged

discriminatory incidents. The agency also found that complainant had

constructive knowledge of her EEO rights because she had received EEO

training.

On appeal, complainant again claims that on multiple occasions in

February 2000; on March 16, 2000; and March 17, 2000, she attempted

to report the sexual harassment to the Chief, who never returned her

messages.

A review of the record persuades the Commission that the complaint was

properly dismissed on the grounds of untimely EEO Counselor contact. The

record shows that on October 31, 1999, complainant received EEO training,

which reviewed the agency's sexual harassment policy. The record in this

case also contains a memorandum issued to agency employees that expressly

addressed the forty-five day limitation period for timely contacting an

EEO Counselor. The Commission determines that the agency has provided

evidence indicating that complainant had constructive notice of the

limitation period for contacting an EEO Counselor. See Pride v. USPS,

EEOC Request No. 05930134 (August 19, 1993). Based on the foregoing,

we find that complainant should have sought EEO counseling within 45

days of the discriminatory incidents but failed to do so.

The Commission acknowledges that complainant may have reported the

alleged sexual harassment to the Chief's office in July and August 1999;

February 2000; March 16, 2000; and March 17, 2000. However, this action

is not sufficient to toll the 45-day time limit because the Commission

has specifically held that internal efforts or appeals of an agency's

adverse action do not toll the running of the time limit to contact

an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC

Request No. 05890038 (June 9, 1989).

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

November 21, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On appeal, complainant states that she was forced to resign on February

25, 2000.