01985109_r
11-05-1999
Neil Hanrahan, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Neil Hanrahan, )
Appellant, )
)
v. ) Appeal No. 01985109
) Agency No. N98-02
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit )
Agency), )
Agency. )
______________________________)
DECISION
On June 12, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 11, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq., �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's
appeal in accordance with EEOC Order No. 960, as amended.
In his complaint, appellant alleged that he has been subjected to "an
ongoing pattern of discrimination and retaliation since March 1989."
Specifically, the agency framed appellant's allegation as follows:
Was appellant sexually harassed and subjected to a hostile work
environment while under the supervision of Supervisor A (from March 1989
to October 1991 and again from October 1992 to March 1998) because of
his sex (male), age (DOB: 6 Feb 48), disability (asthma), and/or national
origin (Irish)?
The agency dismissed the part of appellant's allegation which occurred
prior to August 10, 1994, as untimely. Specifically, the agency noted
that appellant previously contacted an EEO Counselor on June 9, 1994,
alleging that he was sexually harassed while under the supervision of
Supervisor A from March 1989 through October 1991, and from October
1992 to the present. While appellant was advised of his right to file
a formal complaint, pursuant to that counseling, on August 10, 1994,
appellant did not elect to file a complaint at that time. Consequently,
the agency dismissed appellant's attempt to belatedly raise the issue
of sexual harassment occurring prior to August 10, 1994, the date he
received the notice of right to file, on the grounds that the formal
complaint was untimely pursuant to 29 C.F.R. �1614.107(b).
On appeal, appellant contends that he did not pursue a formal complaint
in August 1994, because he believed that he would have to prove that
Supervisor A was abusive only to male employees.
In response, the agency asserts that since appellant did not file a
complaint until three and a half years after receiving his notice of the
right to do so, the allegation regarding harassment prior to August 10,
1998 was untimely and was properly dismissed.
EEOC Regulation 29 C.F.R. �1614.107(b) specifies that a complaint,
or any portion thereof, that fails to comply with the applicable time
limits contained in �1614.106(b) shall be dismissed. EEOC Regulation
29 C.F.R. �1614.106(b) provides that a complaint must be filed within
15 days of receipt of the notice of right to file an EEO complaint.
The Commission has held that, in accordance with 29 C.F.R. �1614.604(c),
the time limitation for filing a complaint is subject to waiver, estoppel,
and equitable tolling.
The contentions advanced by appellant do not provide a basis sufficient
to extend the time limit in accordance with 29 C.F.R. �1614.604(c).
The record indicates that appellant was given and signed for the Notice
of Right to File Individual Complaint on August 10, 1994. His complaint
was filed March 16, 1998, beyond the fifteen-day limitation period.
Appellant's contention that he did not think he had sufficient evidence
does not justify extending the time limitations imposed on the EEO
process. The explanations proffered by appellant, without more, do not
justify his failure to exercise due diligence in preserving his legal
rights. See, Polsby v. Chase, 970 F.2d 1360, 1363 (4th Cir. 1992).
Therefore, the agency's dismissal of appellant's allegation regarding
harassment occurring prior to August 10, 1994, was proper and is AFFIRMED.
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 (S0993)
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 filed your appeal with the
Commission. 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. 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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations