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.