01983064
03-18-1999
Jack R. Williams, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jack R. Williams v. Department of the Navy
01983064
March 18, 1999
Jack R. Williams, )
Appellant, )
)
v. ) Appeal No. 01983064
) Agency No. 98-00251-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The Commission finds that the agency's decision dated January 30,
1998 dismissing appellant's complaint on the grounds that appellant
failed to timely contact an EEO Counselor is proper pursuant to 29
C.F.R. �1614.107(b). Appellant argues that he attempted to file an EEO
complaint in 1992 and 1993 but that EEO Counselor A refused to process
such a complaint.
EEO Counselor A provided an affidavit in which EEO Counselor A asserted
that although he did meet in December 1992 with appellant, appellant did
not express a desire to start the EEO process. EEO Counselor A asserted
that he explained the EEO process to appellant and the necessity to
commence EEO processing within 45 days of the discriminatory event,
but that appellant did not choose, at that time in 1992, to pursue the
matter through the EEO process. EEO Counselor A denied ever dissuading
appellant from filing a complaint. The Commission finds that appellant's
bare assertion that he was denied the right to start the EEO process
is insufficient, when rebutted by the statements in EEO Counselor A's
affidavit, to show that appellant attempted to commence the EEO process
prior to September 8, 1997. Appellant's initial contact with the intent
of pursuing EEO counseling on September 8, 1997 was more than 45 days
after the alleged discriminatory incidents (lack of accommodation;
rejection of appellant's attempt to accept incentive pay and retire).
Appellant has not provided any persuasive reason for finding that the
agency should be equitably estopped from claiming that appellant failed
to timely contact an EEO Counselor.
Because of our disposition we do not address whether the agency properly
dismissed the complaint on additional grounds.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 18, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations