01973744
02-02-1999
Samuel Jackson, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Samuel Jackson v. Department of the Navy
01973744
February 2, 1999
Samuel Jackson, )
Appellant, )
)
v. ) Appeal No. 01973744
) Agency No. 95-00244-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated March 19, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in his June 20, 1995 complaint that the agency
discriminated against him based on his race, color, sex, and retaliation.
The agency dismissed his complaint on November 30, 1995, for untimely EEO
counselor contact. The agency characterized the appellant's complaint
as alleging that the agency discriminatorily and continuously denied his
requests for an enclosed office and a lunch area away from a hazardous
area which led to his being diagnosed with multiple Myeloma.
The appellant appealed to the Commission. The Commission found that the
appellant's allegations involved his working conditions, the appellant's
attempts to make those conditions less hazardous, and the agency's
failure to adequately address his concerns. The Commission reversed
the agency's dismissal of the appellant's complaint and remanded the
complaint to the agency for an preliminary investigation to determine
whether the appellant's complaint should be deemed timely under a
continuing violation theory. Id.
On remand, the agency supplemented the record and issued the decision
at issue in this appeal. Therein the agency dismissed the appellant's
complaint for untimely EEO counselor contact, finding that the continuing
violation theory was inapplicable.
On appeal, the appellant contends that the theory of continuing violation
can be found in the Safety Office records and in his numerous complaints
to agency managers about the hazardous conditions.
The Commission finds that the appellant's numerous complaints to the
agency's Safety Office and other agency officials do not toll the
time limit for EEO counselor contact in this case. The Commission
repeatedly has held that the initiation of other appeal processes does
not toll the time limit for seeking EEO counseling. See, e.g., Moy�
v. Department of the Air Force, EEOC Request No. 05940107 (November 30,
1994) (denial of the appellant's suggestion by higher level officials
following a previous denial of the appellant's suggestion by lower-level
officials); Pappillion v. United States Postal Service, EEOC Request
No. 05931015 (April 28, 1994) (union grievance); Jones v. Department of
Justice, EEOC Request No. 05930909 (March 17, 1994) (informal attempts
to resolve problem); Mathews v. United States Postal Service, EEOC
Request No. 05930887 (January 21, 1994)(worker's compensation claim);
and Hartsell v. United States Postal Service, EEOC Request No. 05930428
(July 16, 1993) (performance appraisal appeal).
CONCLUSION
For the reason stated above, the Commission AFFIRMS the agency's dismissal
of the appellant's June 20, 1995 complaint.
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. �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:
February 2,1999
Date Ronnie Blumenthal, Director
Office of Federal Operations