01993905
07-27-2000
Victoria Tan-Gatue, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Victoria Tan-Gatue, )
Complainant, )
)
v. ) Appeal No. 01993905
) Agency No. 98-3736
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 19, 1999 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact and because
one of its issues had not been raised with the EEO Counselor, 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 sought EEO counseling on October 13,
1998, claiming that she had been discriminated against on the bases
of race and physical disability when on July 29, 1998, she received a
letter from the Office of Worker's Compensation (OWCP) which stated that
a decision dated May 21, 1998, from the Employees Compensation Appeals
Board, recommended that she was totally disabled for the period May 26,
1995 to July 11, 1995, therefore she was entitled to compensation.
Complainant further claimed that the Los Angeles Outpatient Clinic
deliberately failed to provide information to OWCP in a timely manner,
which delayed her compensation. The record shows that Complainant
informed the EEO Counselor that she had filed prior EEO complaints.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the bases of race, national origin,
reprisal, and physical disability when:
(1) on August 4, 1998, she received a letter from the Department of
Labor which stated that it had tried to obtain her pay rate several
times and had not received a reply from the agency; and
(2) her employment was terminated.
By letter dated February 19, 1999, the agency requested that Complainant
explain the disparity between the date that she provided in her informal
EEO complaint (July 29, 1998) and the date that she provided in her
formal complaint (August 4, 1998), and to explain her delay in contacting
an EEO Counselor. The agency also asked Complainant to explain why
she had failed to raise the termination issue with the EEO counselor.
Complainant was advised that she needed to provide the requested
information within 15 calendar days of her receipt of the request.
On March 19, 1999, the agency issued a final decision dismissing
claim (1) on the grounds of untimely EEO counselor contact and on the
alternative grounds of failure to cooperate. The agency found that
after Complainant raised the August 4, 1998 date in her formal complaint,
a written request for additional information was sent to her, to which
she failed to respond. Based on that finding, the agency concluded that
the discriminatory event, (the letter received from OWCP) took place
on July 29, 1998, and her initial EEO Counselor contact on October 13,
1998, was beyond the 45-day time limit provided by EEOC Regulations.
Claim (2) was dismissed on the basis that it had not been brought to
the attention of the EEO counselor.
On appeal, Complainant contends, inter alia, that �out of fear that if
she were to file a complaint the agency would continue to withhold the
requested information and obstruct, interfere with or delay payment of
compensation monies to her, [she] delayed contacting an EEO counselor�.
A review of the record persuades the Commission that the dismissal of
claim 1 was appropriate. We have consistently held that a Complainant's
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO counselor. See Parker v. Department
of Veterans Affairs, EEOC Request No. 05940436 (February 9, 1995).
The matter addressed in claim 1 occurred in late July 1998, and
Complainant's initial EEO Counselor contact occurred on October 13, 1998.
Complainant has failed to present adequate justification for extending
the limitation period beyond forty-five days. Accordingly, the agency's
decision to dismiss claim 1 for untimely EEO Counselor contact was proper
and is AFFIRMED. Because of our decision to affirm the dismissal of
claim 1 for the reason stated herein, we find it unnecessary to address
the agency's decision to dismiss this claim on alternative grounds.
Regarding claim 2, the record reflects that Complainant did not
undergo EEO counseling regarding her termination from agency employment.
The issue of her termination, moreover, is not like or related to matters
for which she had undergone EEO counseling. Accordingly, the agency's
decision to dismiss claim 2 was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 27, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 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.