0120122214
10-10-2012
Elliott Carter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Elliott Carter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122214
Agency No. 200P-0640-2012101007
DECISION
Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated March 15, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Supervisory Police Officer at the Agency's Veterans Affairs Medical Center in Palo Alto, California. On January 26, 2012, he filed a formal complaint alleging that the Agency subjected him to discrimination based on his disability and age (59/60) when:
1. On December 8, 2010, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 10655AE;
2. On September 14, 2011, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 518779AE; and
3. On September 20, 2011, he was not selected for promotion to the position of Supervisory Police Officer (Temporary), vacancy announcement 536247AE.
The Agency dismissed the complaint for failure to timely file the complaint and failure to timely initiate EEO counseling.
On January 10, 2012, Complainant received his Notice of Right to File a Discrimination Complaint, which advised that he had 15 calendar days from its receipt to file his complaint. The notice gave the addresses of three Agency offices for filing the complaint, including one in Los Angeles where Complainant's EEO counselor was located. Complainant filed the complaint by facsimile transmission on January 26, 2012, one day beyond the 15 day deadline. The Agency found that while Complainant called its toll free number on January 26, 2012, stating the fax machine had been busy, it was unable to verify this one way or the other and Complainant did not provide any fax error transmissions, telephone records, or other evidence that the Agency's fax machine was not working, nor explain why he was prevented from timely filing his complaint by mail. When Complainant called he was provided an alternate fax number, which he successfully used that date.
The Agency found that Complainant did not initiate EEO counseling until December 14, 2011, beyond the 45 calendar day time limit to do so. It conceded that on October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility. It referenced a memo signed by Complainant and the EEO Program Manager/ADR Coordinator on October 21, 2011, which explained that Complainant's contact with the EEO office that date did not fulfill the Agency's Office of Resolution Management's (ORM) requirement that he contact an ORM EEO counselor within the 45 day time limit of the occurrence, and giving the telephone number for doing so. The memo emphasized that Complainant's talking with the EEO office did not serve to extend the 45 calendar day time limit for contacting an EEO counselor. In the FAD the Agency referenced that Complainant stated he contacted the Resolution Support Center on October 21, 2011, and was encouraged to participate in mediation prior to filing an EEO complaint. According to the counselor's report Complainant participated in mediation on December 12, 2011, but resolution was not obtained. The Agency found that contacting the Resolution Support Center and attempting to informally resolve his dispute did not toll the time limit to initiate EEO counseling.
On appeal Complainant explains that from early September 2011 to late January 2012 he was busy with a variety of things, i.e., assisting in the provision of hospice care for his mother-in-law, making arrangements for her internment, handling her estate, taking care of his sick wife, and moving, some of which required frequent cross country trips. Complainant writes he did not have his fax machine connected until February 2012. He indicates that on January 25, 2012, he went to AIM Mail Centers and they repeatedly attempted to file his complaint via facsimile in the above referenced Los Angeles office but the fax would not go through and he was told the number kept reading "fax full." Complainant writes that AIM refused to give him a record of the attempted facsimile, saying they would only print out a successful fax report. The record contains a copy of a fax cover sheet to the above referenced Los Angeles office dated January 25, 2012, and a receipt from AIM dated January 26, 2012, indicating successful transmission to an alternate phone number and location. Complainant also argues that he was discriminated against when he was not selected for promotion, and details the promotion process. On the non-selection in issue 2, for which there were four vacancies, Complainant writes that the selected candidates were announced on September 14, 2011. On the non-selection in issue 3 Complainant writes he was notified on September 23, 2011, via email that he was not selected. He later writes, referring to issues 2 and 3, that he was notified on December 20, 2011, that he was not selected for permanent and temporary positions.
In opposition to the appeal the Agency reiterates the findings in the FAD, and adds that Complainant's claim that he was too busy to timely contact an EEO counselor is insufficient. It cites Commission case law to support the finding in the FAD that Complainant's contact with the EEO Program Manager/ADR Coordinator on October 21, 2011, did not constitute counselor contact. The Agency argues that while Complainant argues that he was notified of his non-selections in issues 2 and 3 on December 20, 2011, this is not relevant because he knew in September 2011 he was not selected for these positions.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
In support of its finding that Complainant's contact with the EEO Program Manager/ADR Coordinator on October 21, 2011, did not constitute counselor contact, the Agency cites, among other cases, Khiaosoth v. Department of Veterans Affairs, EEOC Appeal No. 0120070730 (July 5, 2007). In Khiaosoth, the complainant's attorney spoke to an EEO Program Manager on April 20, 2006, who informed the attorney of the EEO process. The attorney advised the EEO Program Manager that he was going to file the claim with the Ohio Civil Rights Commission, and the EEO Program Manager directed him to the Agency's ORM, explaining that the Ohio Civil Rights Commission was not the proper place to take complainant's complaint. Nevertheless, the complainant contacted the Ohio Civil Rights Commission, and thereafter on June 14, 2006, the attorney sent a letter to an agency EEO Officer which "officially stated complainant's intention to pursue this issue through the proper agency procedures." The Commission found that complainant initially contacted an EEO counselor on June 14, 2006, and hence his counselor contact was untimely. In making this finding the Commission recited case law that in order to establish EEO counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit intent to begin the EEO process. The Commission reasoned that while the EEO Program Manager complainant contacted on April 20, 2006, was logically connected to the EEO process, complainant did not exhibit an intent to begin the EEO process at that time, referring to her attorney saying he was going to file a claim with the Ohio Civil Rights Commission, and EEO Program Manager telling the attorney this was not the proper place and directing him to the ORM.
While Khiaosoth is not exactly on point, its principles are applicable here. On October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility, who was logically connected to the EEO process. Both signed a memo setting out the 45 calendar day time limit to initiate EEO counseling, and that contacting this EEO office did not fulfill or extend this time limit to initiate EEO counseling, and giving the telephone number for doing so. Instead, Complainant engaged in mediation, which did not toll the time limit to initiate EEO counseling. Given these circumstances, we find that Complainant did not exhibit intent to begin the EEO process until he initiated EEO counseling on December 14, 2011. This contact was untimely because it was more than 45 calendar days after he learned of all the non-selections for promotion at issue. Complainant knew he was not selected for the position in issue 1 in December 2010, and the remaining positions by September 2011, and a later notification confirming some of this does not extend the time limit to initiate EEO counseling. Further, to the extent Complainant argues that he delayed initiating EEO counseling because he was busy this reason is insufficient, i.e., Complainant has not shown he was incapacitated from timely initiating EEO counseling.
Accordingly, the FAD is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 10, 2012
__________________
Date
1 Because we have determined that Complainant failed to timely initiate EEO counseling, we need not address whether he failed to timely file his complaint.
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0120122214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122214