01991213
01-25-2001
Yolanda Hollman, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Yolanda Hollman v. Department of the Navy
01991213
January 25, 2001
.
Yolanda Hollman,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01991213
Agency No. 99-00204-001
DECISION
Complainant filed a timely appeal with this Commission from an
agency October 21, 1998 decision to dismiss her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic),
sex (female), age, and in reprisal for prior EEO activity when:
On December 24, 1997, the General Manager directed comments towards
complainant and other managers on duty that, �you are setting yourself
up for a serious situation, you are all on dangerous ground;�
On February 26, 1998, complainant received a specific Notice of
Termination, effective April 2, 1998, which forced complainant to retire
early (on April 1, 1998). Complainant was not given a four to six month
Notice as previously mentioned; and
On March 30, 1998, complainant was denied an extension of her involuntary
retirement whereas other employees were given an extension.
The agency dismissed the complaint for untimely counselor contact, finding
that complainant retired effective April 1, 1998, but failed to contact
an EEO counselor until June 3, 1998 (sixty-three days later). On appeal,
complainant argues that she contacted an EEO Specialist by telephone
on April 16 and May 4, 1998 concerning her claims. Complainant asserts
that the Specialist informed complainant that she did not have a claim.
Complainant contends that she visited the EEO Specialist in person on
June 3, 1998 (with a co-worker), and again was told that she did not have
a claim. After complainant left the office, she claims the Specialist
called to inform complainant that she would process her claims even
though she did not have a meritorious claim.
In response, the agency provides an affidavit from the EEO Specialist.
The Specialist denies any recollection or notes of complainant's calls in
April or May. The Specialist concedes that she spoke with complainant
in �mid-May� concerning a private business matter. According to the
Specialist, complainant mentioned that she was contemplating whether
to file an EEO complaint. The Specialist asserts that she informed
complainant of her EEO rights at that time. The Specialist denies any
further contact with complainant until the June 3, 1998 meeting. At the
meeting, the Specialist explains that she questioned the timeliness of
complainant's claim, but agreed to process the complaint.
Generally, claims of discrimination must be raised with an EEO Counselor
within forty-five (45) days of the effective date of the personnel
action in question. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). To initiate contact, complainant must express
her intention to file a complaint to an official logically connected
to the EEO process. See Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 9, 1996).
In the present complaint, complainant claims that she called to discuss
her complaint on several occasions, but does not indicate that she
expressed an intent to file a complaint at those times. Further, the
EEO Specialist denies receiving such calls, and complainant presents
no evidence, apart from her assertions, to support her contentions.
The Commission finds that complainant first contacted EEO and indicated
her intent to file a complaint on June 3, 1998. Therefore, her contact
of an EEO Counselor was untimely.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 25, 2001
__________________
Date