01A14446_r
10-30-2001
Agnes Adams, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Agnes Adams v. Department of Veterans Affairs
01A14446
October 30, 2001
.
Agnes Adams,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14446
Agency No. 200H-2186
DECISION
Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and
1614.107(a)(2), for untimely EEO contact and for failure to state a claim.
On March 19, 2001, complainant, a former retired employee of the agency,
filed an EEO complaint alleging that she was discriminated against when:
(1) On March 31, 2000, she retired because her request to
be upgraded to Assistant Chief of Canteen
services at the Syracuse VAMC was denied and she was told to
train a 23 year old Canteen Service Trainee.
(2) In November 2000, she became aware that in August 2000,
the Canteen Service Trainee was appointed as
the Assistant Chief Canteen Service at the Syracuse VAMC.
The agency dismissed claim 1 on the grounds of untimely EEO Counselor
contact, finding that complainant did not contact an EEO Counselor on
the matter raised therein until January 12, 2001, which is beyond the
45- day time limit. The agency dismissed claim 2 for failure to state
a claim. The agency determined that complainant was not an employee
or applicant for employment at the time of the alleged appointment of
the selectee. Accordingly, the agency concluded that complainant was
not aggrieved.
The record discloses that the alleged discriminatory event in claim 1
occurred on March 31, 2000, but complainant did not initiate contact with
an EEO Counselor until January 12, 2001, which is beyond the forty-five
(45) day limitation period. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Accordingly, the agency's final decision
dismissing claim 1 in complainant's complaint is AFFIRMED.
Regarding claim 2, the record discloses that complainant retired from
the agency on March 31, 2000. In November 2000, when complainant learned
that an employee was appointed to the position of Assistant Chief
Canteen Services in August 2000, complainant was neither an employee of
the agency nor was an applicant for that position. The Commission finds
that the agency correctly determined that she was not aggrieved by the
agency's action, as there is no nexus between the alleged discriminatory
event articulated in claim 2 and complainant's former status as an agency
employee. The agency therefore properly dismissed claim 2 for failure
to state a claim. Accordingly, the final agency decision dismissing
the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 30, 2001
__________________
Date