01A14664
08-15-2002
James R. Welcome, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
James R. Welcome v. Department of Navy
01A14664
August 15, 2002
.
James R. Welcome,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14664
Agency No.____<1>
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to
contact an EEO Counselor. Complainant sent a formal complaint directly to
the Office of the Assistant Secretary, who forwarded the complaint to the
Office of Human Resources (HRO NOLA) in New Orleans, Louisiana. In its
final decision (FAD) dated July 18, 2001, the agency found no record of
counselor contact on complainant's part, and instructed complainant that
in order to pursue an allegation of discrimination, he was required to
seek EEO counseling by contacting the EEO Office at HRO NOLA. The FAD
then dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
On appeal, complainant argues that his complaint was timely filed in
accordance with the applicable regulations since �[his] contact with
[the Assistant Secretary] was sufficient to toll the time limit for
contacting an EEO counselor.� Cox v. Department of Housing and Urban
Development, EEOC Request No. 05980083 (July 30, 1998). However,
the instant complaint was not dismissed for untimely contact with an
EEO counselor, it was dismissed because it �raise[d] a matter that
has not been brought to the attention of a Counselor...� 29 C.F.R. �
1614.107(a)(2). Complainant's argument is applicable when a question
arises as to the timeliness of EEO counselor contact in situations
where a complainant ultimately seeks EEO counseling (as the instant
FAD instructs) after first having contacted an agency official logically
connected to the EEO process. However, a complainant cannot circumvent the
important step of EEO counseling by simply sending a complaint directly
to an agency official. We note that complainant has filed previous
complaints of discrimination and therefore, should be familiar with
this procedural requirement. Accordingly, the agency's final decision
dismissing complainant's 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
August 15, 2002
__________________
Date
1 The record indicates that no agency number
was assigned to this complaint.