01996684
11-28-2000
Alma Kern, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Alma Kern v. Department of Veterans Affairs
01996684
11-28-00
.
Alma Kern,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996684
Agency No. 99-3042
DECISION
Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact.<1> The record discloses that
the alleged discriminatory event occurred on or about October 28, 1998,
when complainant submitted a request for and was denied 240 hours of
advanced sick leave. In a letter dated December 14, 1998, complainant's
attorney, B-1, informed the agency that complainant told him that white
employees were allowed to take advanced sick leave up to 240 hours, but
that black employees were not. In a letter, dated February 1, 1999, A-1,
Manager, Great Lakes Human Resources Management Service, informed B-1
that if complainant wanted to file a discrimination complaint regarding
the denial of her request for advanced sick leave, she needed to contact
the EEO Program Manager. The name and telephone number of the manager
was provided to B-1. Complainant, however, did not initiate contact with
an EEO counselor until June 8, 1999, which is well 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.
According to the record, complainant maintained that she did not seek
counseling earlier because she �was in the hospital and sick.<2>� The
record, however, indicates that, while she was off-work for 6 months,
she returned to work on or about March 19, 1999.<3> Accordingly, the
agency's final decision dismissing the complaint 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
__11-28-00____________________________
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
______________________________
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.
2According to complainant, she had surgery on the arteries of both legs.
3We also find that complainant failed to offer any persuasive evidence
that, during the entire six month period that she was off-work, she
was so incapacitated by her condition that she was unable to initiate
EEO contact. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998).