01A12118_r
05-14-2001
David B. Nocera, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
David B. Nocera v. Department of Veterans Affairs
01A12118
May 14, 2001
.
David B. Nocera,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12118
Agency No. 2004-2310
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that complainant sought EEO
counseling on November 3, 2000, claiming that he had been discriminated
against on the basis of reprisal when on September 18, 2000, he was not
selected for promotion. Complainant advised the EEO Counselor that he
did not seek EEO counseling before because he was waiting for official
documentation concerning his non-selection. Subsequently, complainant
filed a formal complaint claiming that he had been discriminated against
on the basis of reprisal when on September 18, 2000, he was not selected
for the position of Medical Administration Officer, GS-0301-14.
The agency dismissed the complaint for untimely EEO Counselor contact.
On appeal, complainant contends that he decided to wait to seek EEO
counseling because he was uncertain about his willingness to accept
the long term impact of filing a complaint. Complainant claims that he
was willing to accept a lateral reassignment and was waiting to see what
decision the agency would make. He also contends that he wanted to avoid
an EEO complaint because he had seen what happened to other employees
who filed complaints. Finally, complainant claims that on November 3,
2000, he decided that he had waited enough for a lateral reassignment
and was finally willing to accept the consequences of filing a complaint.
The record discloses that the alleged discriminatory event occurred on
September 18, 2000, but complainant did not initiate contact with an EEO
Counselor until November 3, 2000, which is beyond the forty-five (45)
day limitation period. The arguments presented on appeal persuade the
Commission that complainant decided to delay his EEO Counselor contact
based on several reasons, none of which warrant an extension of the time
limit for initiating EEO contact.
We have previously held that mere fear of reprisal is insufficient
justification for extending the time limitation for contacting an
EEO Counselor. Duncan v. Department of Veterans Affairs, EEOC Request
No. 05970315 (July 10, 1998). 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
May 14, 2001
__________________
Date