01981270
01-19-1999
Roger L. Burton, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Roger L. Burton v. Department of Veterans Affairs
01981270
January 19, 1999
Roger L. Burton, )
Appellant, )
)
v. ) Appeal No. 01981270
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's October 31, 1997 decision
dismissing appellant's complaint on the grounds of untimely EEO counselor
contact, is proper pursuant to the provisions of EEOC Regulation 29
C.F.R. �1614.107(b).
The record shows that appellant sought EEO counseling on March 12,
1997, alleging that he had been discriminated against on the basis of
age (57) regarding: (1) the assignment of his duties in January 1997;
(2) failure to promote 1995, and January 1997; (3) harassment in 1994,
1995 and 1997; and, (4) working conditions on January 7, 1997. The agency
sent a written request to appellant to explain why he had not contacted
an EEO counselor before March 12, 1997. Appellant informed the agency
that he was unaware of EEO procedures. The agency issued a final decision
dismissing the complaint on the grounds of untimely EEO counselor contact
after finding that appellant had attended mandatory EEO training in 1994.
On appeal, appellant contends that said training dealt exclusively with
sexual harassment.
We have reviewed the record and it shows that appellant attended said
training on March 4, 1994. The record further shows that the training in
question not only provided the names and phone numbers of EEO counselors
as well as the prescribed time limits; it also informed appellant about
the different bases to file a complaint of discrimination: "race, color,
religion, age, sex, sexual harassment, national origin, reprisal and
handicapping condition".
The Commission has held that where there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
appellant's complaint, the agency has met its burden. We find that
appellant has not submitted any persuasive evidence showing that
an alleged discriminatory incident occurred sometime during the 45
day period preceding his counselor contact. Accordingly, the agency's
decision dismissing the complaint on the basis of untimely EEO counselor
contact 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. �l6l4.604(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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
January 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations