01981028
11-04-1998
Janice D. Vashon, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Janice D. Vashon v. Department of the Navy
01981028
November 4, 1998
Janice D. Vashon, )
Appellant, )
)
v. ) Appeal No. 01981028
) Agency No. DON 97-62661-004
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The agency failed to supply a copy of a
certified mail return receipt establishing the date appellant received the
agency's final decision. The appeal was postmarked November 14, 1997.
Accordingly, since the agency failed to supply documentation from which
the Commission could determine the date appellant received the final
decision, the Commission presumes that appellant's appeal was timely
filed. See 29 C.F.R. �1614.402(a). The appeal is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to timely initiate EEO contact.
BACKGROUND
Appellant contacted an EEO counselor on April 10, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when upon returning from work on November
15, 1996, the agency failed to accommodate appellant's disability.
Appellant alleges further discrimination when on January 9, 1997 the
agency decided to terminate her. Informal efforts to resolve appellant's
concerns were unsuccessful.
Accordingly, on July 7, 1997, appellant timely filed a formal complaint
of discrimination on the basis of mental disability (recent onset memory
deficit).
On October 9, 1997, the agency issued its final decision dismissing
appellant's complaint for untimely EEO contact. The FAD determined
that appellant learned on January 9, 1997 of the agency's decision to
terminate her, but did not seek EEO counseling until April 10, 1997.
The FAD found that appellant's April 10, 1997 contact was beyond the
forty-five (45) day time limitation provided by EEOC Regulations.
ANALYSIS AND FINDINGS
EEOC Regulation �1614.105(a)(1) provides that an aggrieved person must
initiate contact with an EEO Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106 and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The record indicates that on January 9, 1997 appellant learned of
the agency's decision to terminate her. The record further indicates
that appellant's termination was to become effective January 17, 1997.
Appellant has not submitted any evidence or arguments challenging the
agency's summary of the relevant dates of the various personnel actions.
In accordance with 29 C.F.R. �1614.105(a)(1), the forty-five (45) day
time period would begin to run on the effective date of appellant's
termination or, January 17, 1997. Here, however, appellant did not
contact an EEO Counselor regarding her termination within forty-five
(45) days of January 17, 1997 but instead, appellant sought counseling
on April 10, 1997.
The EEO counselor's report indicates that appellant stated that she
did not contact a counselor prior to April 10, 1997 because she was
discouraged from doing so by her former supervisor. Appellant alleged
that her former supervisor told her that the agency frowned upon
employees who used the EEO process. Appellant does not indicate that
she was unaware at all of the time limits for counselor contact provided
in EEOC Regulations. Appellant fails to offer any evidence supporting
her claim that she was discouraged from seeking EEO counseling by her
former supervisor. Upon review, we determine that appellant has failed
to demonstrate that the time period for counselor contact should be
extended for any reason. In that regard, the Commission finds that the
agency's decision dismissing appellant's complaint was proper.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. �1614.604(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:
November 4, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations