01a02097
07-06-2000
Doranne L. Moncavage, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Doranne L. Moncavage v. Department of Veterans Affairs
01A02097
July 6, 2000
Doranne L. Moncavage, )
Complainant, )
)
v. ) Appeal No. 01A02097
) Agency No. 200P-1953
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency decision dated January 7, 2000,
which dismissed complainant's complaint for untimely EEO contact,
is proper pursuant to 64 Fed. Reg. 37, 644, 37, 656 (1999) (to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1> In
her complaint, complainant alleged that she was subjected to harassment.
Specifically, she alleged that her supervisor harassed her on August 2,
1999, March 30, 1999, and on other unspecified dates. The agency found
that complainant did not contact an EEO counselor about these incidents
until November 17, 1999. On appeal, complainant argues that the time
limit should be waived under the continuing violation theory and because
she did not know about the applicable time limits.
According to the regulations, a complainant must make EEO counselor
contact within 45 days of the alleged discriminatory event. 29 C.F.R. �
1614.105(a)(1). In order for complainant to have made timely contact, she
should have contacted an EEO counselor by September 16, 1999. However,
the Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
In this case, complainant has not identified any incident of harassment
which fell within the 45 days prior to her November 17, 1999 EEO counselor
contact. Therefore, she has not established a continuing violation.
In her complaint and on appeal, complainant stated that she did not report
the incidents because she was afraid of being fired. The Commission has
held that mere fear of reprisal is not enough justification to toll the
time limits. See Kovarik v. Dept. of Defense, EEOC Request No. 05930898
(December 9, 1993).
Also, complainant argues that she did not know about the 45-day time
limit. According to the complainant's training report and a statement
of the EEO Program Manager, complainant received information about the
EEO process, including the applicable time limits for initiating EEO
contact, at the New Employee Orientation and the Prevention of Sexual
Harassment classes on September 10, 1998. We find, therefore, that
complainant had constructive knowledge of the applicable time limits.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995).
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.