01995628
02-23-2001
Susan E. Parkes, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Susan E. Parkes v. Department of Veterans Affairs
01995628
February 23, 2001
.
Susan E. Parkes,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995628
Agency No. 99-2646
DECISION
Complainant timely initiated an appeal from the June 22, 1999 final
agency decision (FAD) dismissing claim one of two claims raised in her
EEO complaint (denial of tuition reimbursement on July 3, 1998).<1>
Direct appeals of decisions partially dismissing a complaint are no
longer permissible under the regulations revised on November 9, 1999.
However, the record reflects that the agency conducted an investigation
of the accepted claim (denial of a tuition reimbursement on February
24, 1999); complainant requested a hearing and a decision by an EEOC
Administrative Judge (AJ); the AJ issued a finding of no discrimination,
without a hearing; and the agency accepted the AJ's decision, in a
final action dated October 23, 2000. The record does not contain any
evidence indicating that complainant filed an appeal from the October
23, 2000 final action by the agency. Therefore, the Commission will
consider the instant appeal relating to the dismissal of the claim
regarding the July 3, 1998 tuition reimbursement denial, because there
are apparently no remaining claims from the instant complaint anywhere
in the administrative EEO process.
In its June 22, 1999 FAD, the agency dismissed the claim regarding a
denial of tuition reimbursement in July 1998, on the grounds of untimely
EEO Counselor contact The record discloses that the dismissed claim
alleged a discriminatory event occurred on July 3, 1998, but that
complainant did not initiate contact with an EEO Counselor on that
matter until March 3, 1999, which is beyond the forty-five (45) day
limitation period.
Complainant argues that she attempted to resolve this matter by
first pursuing possible redress through the agency chain of command.
Complainant also argues that she did not know that she could file
an EEO complaint. The record, however, contains evidence reflecting
that complainant had constructive notice of the right to pursue the
EEO complaint process, including information regarding the limitation
period for timely contacting an EEO Counselor. Moreover, the Commission
has consistently held that utilization of internal procedures will not
toll the limitation period for contacting an EEO Counselor. See Kramer
v. USPS, EEOC Appeal No. 01954021 (October 5, 1995). Accordingly,
the agency's final decision dismissing complainant claim regarding the
July 1998 tuition reimbursement denial 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
February 23, 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 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.