01992134
02-17-2000
Denise Johnson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Denise Johnson, )
Complainant, )
)
v. ) Appeal No. 01992134
) Agency No. 98-3571
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On January 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
December 22, 1998, pertaining to her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(Caucasian) and in reprisal for prior EEO activity when she was subjected
to a continuing pattern of harassment, and was denied reassignment or
transfer to another position.<2>
The agency dismissed the complaint for failure to file a formal
complaint in a timely manner. Specifically, the agency found that
complainant received her notice-of-right-to-file-a-formal-complaint
(NRTF) on February 26, 1998, but did not file a formal complaint until
April 8, 1998. The agency did not accept complainant's argument that
the time limit should be extended because she filed within fifteen (15)
days of the most recent act alleged.
The record includes the NRTF, signed and dated by complainant on
February 26, 1998, and a copy of the formal complaint, dated April
3, 1998. The NRTF informs complainant that she must file her formal
complaint within fifteen (15) days of receiving the NRTF. The record
also includes a letter dated May 11, 1998, requesting that complainant
explain her delay in filing her formal complaint.
By a response dated May 13, 1998, complainant's attorney explained that
the complaint involved multiple, ongoing acts. The attorney argued that
complainant was required to file within the �relevant time� dated from
the most recent act of discrimination.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint. The regulations also provide for dismissal of
complaints that fail to comply with the applicable time limits contained
in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the
time limits in accordance with � 1614.604(c). See 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(2)).
The record in this case indicates that complainant received a notice of
the right to file a formal discrimination complaint on February 26, 1998.
The notice informed complainant that she had fifteen (15) days from
the date of receipt of the notice in which to file a formal complaint.
The record further reflects that complainant did not file a formal
complaint within fifteen days of receiving this notice, but instead filed
the formal complaint on April 8, 1998. Complainant's explanation for her
late filing -- that EEOC Regulations allow complainant to file her formal
complaint within fifteen days of the most recent act of discrimination --
is incorrect. Complainant has failed to present adequate justification,
pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 17, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant alleged twenty-seven (27) separate instances of harassment
occurring from April 1997 through April 6, 1998.