0120113588
10-26-2012
Renee Morris-Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Renee Morris-Taylor,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113588
Agency No. 200406522011101359
DECISION
Complainant filed an appeal with this Commission from the Agency's Final Decision dated June 22, 2011, dismissing 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. For the following reasons, we AFFIRM the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Records Technician at the Agency's Veterans Affairs Medical Center facility in Richmond, Virginia. On March 8, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race when:
A. On February 2, and 28, 2008, White employees were being paid overtime, while Complainant was given compensatory time for extra hours worked;
B. Effective October 14, 2008, Complainant was not provided the same access to census report information, or tools necessary to complete her assignment as a coder, as were White employees;
C. From June 1, 2009, through February 3, 2010, Complainant's Supervisor failed to correct mechanical problems with Complainant's telephone that affected her ability to work, while a new telephone was provided to a White co-worker;
D. In August 2009, Complainant's caseload duties were not reassigned to a back up coder when she was off work for a week, as was done for co-workers;
E. On January 7, 2010, and June 16, 2010, Complainant's supervisor failed to conduct coding audits and did not advise Complainant of the status of her workload;
F. In April 10, 2010, Complainant's supervisor stated Complainant was not qualified to participate in the Pilot Telework Program;
G. On October 19, 2010, Complainant's supervisor failed to assign Complainant special coder duties and projects as assigned to White coworkers; and
H. On October 19, 2010, Complainant was assigned additional coder duties due to the absence of a co-worker.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency also dismissed all claims, except claim (F), pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that Complainant failed to present the claims for EEO Counseling prior to filing of her complaint. The Agency found that all claims except claim (F) are not like or related to the claims discussed during counseling. The Agency found that Complainant contacted an EEO Counselor on January 5, 2011. The events described in claims (A) through (H), the Agency noted, all occurred more than 45 days before Complainant initiated the EEO counseling process. With regard to claim (F), the Agency found that the pilot program for telework was announced to Complainant and all members of the coding staff in April 2010, and employees were informed of the criteria necessary to qualify for the program. Complainant did not qualify for the program at that time, the Agency notes. This was, the Agency noted, the only claim that Complainant discussed with the EEO Counselor in January 2011. The Agency found all of Complainant's claims were untimely presented for counseling and dismissed the complaint on that basis.
On appeal, Complainant claims that the denial of the opportunity to telework is an ongoing claim and therefore should not have been dismissed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
In the instant case, we find the Agency properly dismissed the complaint for untimely EEO Counselor contact. We find that Complainant has not presented sufficient evidence to warrant a waiver or tolling of the time for initiating the EEO process. Complainant does not argue that she was unaware of the time limit, or otherwise incapacitated and unable to comply with the Commission's regulations. The record reveals that Complainant's EEO contact occurred on January 5, 2011, which is more than 45 days from when she should have reasonably suspected discrimination occurred for each of the incidents described in her complaint.
Regarding claim (F), we find the Agency properly dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(2). The record discloses that when the telework program was announced, Complainant did not meet the criteria for participation based on an audit of her work. We find that Complainant was denied an opportunity to participate in the program in April 2010, but waited until January 5, 2011, to contact an EEO Counselor. We find that Complainant should have reasonably suspected discrimination regarding claim (F) in April 2010.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
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 (Nov. 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 26, 2012
__________________
Date
2
0120113588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013