01984780
08-24-1999
Janice R. Smets, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Janice R. Smets v. Department of the Navy
01984780
August 24, 1999
Janice R. Smets, )
Appellant, )
)
)
v. ) Appeal No. 01984780
) Agency No. DON-FY97-62583-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Upon review, the Commission finds that the agency improperly
dismissed allegation (1) in appellant's complaint, pursuant to 29
C.F.R. �1614.107(b), due to untimely EEO Counselor contact. In the
subject allegation, appellant, an applicant for employment with
the agency, indicated that on August 15, 1995, she was not selected
for a Procurement Analyst, GS-12, position under case no. NFCTC95-06.
Appellant also indicated that she became aware of discrimination on August
29, 1996, during her conversation with an agency official concerning her
application for another Procurement Analyst job opportunity which opened
on August 23, 1996. Appellant stated that during that conversation, she
learned that although she was one of the four highly qualified candidates
for the subject position, a younger individual, who was not one of those
four highly qualified candidates, was selected for the subject position.
The Commission has held that a complainant's contact with an EEO Counselor
was timely when it was within the applicable time limit of his/her
learning of past agency actions causing him/her to believe that he/she
had been discriminated against, even though the EEO Counselor contact
occurred more than 45 days following the challenged personnel action.
See Gray v. USPS, EEOC Request No. 05890018 (March 17, 1989). Here,
appellant contacted an EEO Counselor on September 17, 1996, which was
within 45 days after she became aware of the alleged discrimination;
thus, her EEO Counselor contact with regard to allegation (1) was timely.
Upon review, the Commission finds that the agency properly dismissed
allegation (2), concerning appellant's nonselection to a Procurement
Analyst, GS-12, position under case no. NFCTC95-03 on April 25, 1995,
pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO Counselor contact.
Appellant contacted an EEO Counselor with regard to the matter on
September 17, 1996, which was beyond the 45-day time limit set by
the regulations. Appellant failed to present sufficient justification
to warrant an extension of the applicable time limit pursuant to 29
C.F.R. �1614.105(a)(2).
Upon review, the Commission finds that the agency properly dismissed
allegation (3) concerning appellant's nonselection to a Procurement
Analyst, GS-12, position under case no. NFCTC97-01, for failure to state
a claim, pursuant to 29 C.F.R. �1614.107(a). The record indicates that
appellant, although she applied, subsequently, withdrew her application
for the position; thus, she was not considered for the position. Thus,
we find that the subject allegation does not state a claim under the
meaning of the regulations.
Based on the foregoing, the agency's final decision is MODIFIED.
Allegation (1) is REMANDED to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations