01992168
01-08-2001
Janice Matthews, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Janice Matthews v. Department of Veterans Affairs
01992168
January 8, 2001
.
Janice Matthews,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992168
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on reprisal. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on December 1, 1997, complainant filed
a formal complaint.
On December 14, 1998, the agency issued a decision dismissing the
complaint on the grounds that it was untimely filed. According to the
agency, complaint received the Notice of Right to File a Discrimination
Complaint (hereinafter �Notice�) on October 30, 1997; and she did
not file her complaint until December 1, 1997, well beyond the 15-day
time limitation. The agency noted that in a letter attached the formal
complaint, complainant asserted that the complaint was untimely filed
because she had not received a response to a hearing request concerning
her prior complaint. The agency determined that the time limitation
was clearly set forth in the Notice and a waiver of the time limit was
not justified.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
In the instant case, complainant admits that the complaint was untimely
filed. In the formal complaint, complainant asserted that an agency
employee's false statements relating to complainant, and complainant's
unanswered request for a hearing, made it �difficult to meet the 15-day
deadline.� Further, on appeal, complainant argues that she attempted
to resolve her claims through the nursing board; and that only after
such efforts failed did she continue with the EEO process and file a
formal complaint.
The Commission has consistently held that utilization of internal
agency procedures, union grievances, and other remedial processes does
not toll the time limit for contacting an EEO Counselor. See Kramer
v. U.S. Postal Service, EEOC Appeal No. 01954021(October 5, 1995);
Williams v. U.S. Postal Service, EEOC Request No. 05910291(April 25,
1991). Similarly, we do not find that the use of such procedures should
toll the time limit for filing a formal complaint. As noted by the
agency, the Notice clearly stated that the complaint could be filed
in person or by mail, and that failure to do so within 15 calendar
days could result in dismissal. Therefore, we find that complainant
failed to provide sufficient justification for waiving or tolling the
time limitation. Accordingly, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 8, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.