01992123
12-23-1999
Sharon M. Simmons, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Sharon M. Simmons, )
Complainant, )
)
v. ) Appeal No. 01992123
) Agency No. 1204-99008
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
______________________________)
DECISION
We find that the agency's December 15, 1998 decision dismissing
Complainant's complaint on the grounds of untimely EEO counselor contact
is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2).<1>
The record shows that complainant contacted the EEO office on August 7,
1998, alleging that she had been discriminated against on the bases
of race and sex when on July 17, 1998, she was not selected for the
position of Manager, Natural Gas Supply. The EEO Counselor's Report
states that complainant contacted an EEO Counselor on August 7, 1998,
and met with the EEO Director on August 10, 1998. However, the Report
also reflects that when complainant met with the Senior EEO Specialist
on August 27, 1998, she specifically stated that she did not want to
begin the EEO process at that time and that she would make a decision
by �September 8, 1998". The record reflects that on October 15, 1998,
complainant stated that she wished to begin the EEO complaint process.
Complainant subsequently filed a formal complaint of discrimination
alleging that she had been discriminated against on the bases of race
and sex when on July 17, 1998, she was not selected for the position of
Manager, Natural Gas Supply.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency noted that complainant's
October 15, 1998 EEO counselor contact had occurred beyond the 45-day
time limit provided by EEOC Regulations.
On appeal, complainant contends that during her meeting with the Senior
EEO Specialist he advised her to contact him by September 8, 1998.
Complainant further contends that because this date was �outside the 45
day time limit, [she] left the meeting completely confident that she
had satisfied the time requirements�. Complainant acknowledges that
she had not begun the EEO complaint process previously because �she
was not prepared to confront the selecting manager in the capacity of a
complainant in an EEO complaint [but] that it was not meant to address
whether her intent was to file or not to file a complaint�.
In response to complainant's contentions, the agency has provided
affidavits executed by the Senior EEO Specialist and the EEO Director.
In his affidavit, the EEO Director states that during their August 10,
1998 meeting, he explained the EEO complaint process and the 45-day
time limit to complainant. He further states that complainant did not
indicate that she wished to begin the pre-complaint counseling process.
In his affidavit, the Senior EEO Specialist states that when he met with
complainant on August 27, 1998 and discussed the EEO process with her,
he specifically advised her to initiate the pre-complaint process within
45 days �from the date she learned of the alleged discrimination, July
17, 1998". The Senior EEO Specialist further indicated that it was
complainant, not he, who suggested the September 8, 1998 date.
A review of the record persuades the Commission that the final agency
decision was proper. The Commission has held that EEO counselor contact
for purposes of tolling the 45-day time limit requires at a minimum
that a complainant intend to pursue EEO counseling when the Complainant
initiates EEO contact. Snyder v. Department of Defense, EEOC Request
No. 05901061 (November 1, 1990); Mitchell v. Department of Commerce,
EEOC Appeal No. 01934119 (March 4, 1994). We do not find such intent
in complainant's EEO counselor contacts prior to October 15, 1998.
Accordingly, the final agency decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Dec. 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ _____________________________
DATE Equal Employment Assistant1 On 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.