0120120831
05-30-2012
Rosemarie Aquiningoc, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rosemarie Aquiningoc,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120831
Agency No. 200P-0459-2011103707
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 3, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Between August 2, 2010 through October 1, 2010, Complainant worked for the Agency as a temporary hire as a Medical Administrative Assistant at the Agency's Guam Community Outpatient Base Clinic in Agana Heights, Guam. After the expiration of her period as a temporary hire, Complainant continued at the Guam Community Outpatient Base Clinic as a participant in the Agency's work-study program.
On June 10, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On September 20, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the basis of age when:
1. On February 8, 2011, while serving as a work study student, there was a question as to whether she should have access to certain computer programs.
2. From January 2011 to May 2011, the front desk staff would not notify her wherever there was a patient waiting. The staff would wait approximately one-half hour, and then the staff would inform Complainant that the patient was upset because he or she had to wait a while to see someone.
3. On August 19, 2010, Complainant received notification that she was not selected for the position of Medical Administrative Assistant, GS-3030-06, advertised under Announcement No. 361156.
4. From August 19, 2010 to September 9, 2010, she was no longer receiving emails through the clinic staff mail group because she was removed from the mail group list.
5. On or about September 10, 2010, she verbally requested to attend the Scheduler Course and was told by a Supervisor/Social Worker (S/SW) that she was not eligible to take the course. Complainant believed that the Clinic Manager (CM) informed S/SW to say that.
6. On September 14, 2010, she was copied on an email from the timekeeper (TK) wherein TK questioned the hours that Complainant had worked.
7. On September 20, 2010, CM questioned her in an email about the location of a UPS package. Complainant felt that CM should have used the clinic staff mail group and not just singled her out because others handled the UPS package as well.
8. On September 26, 2010, she informed her co-workers that she had to leave early. The co-workers left to get something to eat, forcing her to leave the front desk alone and making it appear as if she had abandoned the front desk.
9. On September 27, 2010, she received her SF-50 Notification of Personnel Action and noted that her veterans' preference was not listed on it.
10. On September 28, 2010, she emailed the Human Resources department (HR) a copy of her veterans' preference letter and requested that it reflect correctly on her SF-50. HR informed her that the next time she puts in for a position, that she provide her veterans' preference letter. HR did not update her SF-50.
11. On September 29, 2010, she received an email from TK regarding a timecard correction for August 31, 2010. Complainant worked that day and did not know why it needed to be corrected.
12. On October 10, 2010, her last day of her emergency hire, she received an email from CM questioning her on the work that she had done and indicated that it was wrong to call patients to remind them of their appointments.1
In its November 3, 2011 final decision, the Agency dismissed Claims 1 and 2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant was not an aggrieved employee. The Agency determined that during the period that these alleged incidents occurred, Complainant was a work study student, following the expiration of her temporary appointment to Agency employment.
Regarding Claims 3 - 12, the Agency dismissed these claims on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency acknowledged that Complainant indeed was a temporary Agency employee from August 2010 to October 2010 (the period in which claims 3- 12 fell). However, the Agency determined that Complainant's initial EEO Counselor contact occurred on June 10, 2011, beyond the 45-day limitation period for making timely EEO contact. The Agency asserted that Complainant had both actual and constructive knowledge of the time limits because she attended a Prevention of Sexual Harassment training session on August 17, 2010, in which she was advised of the time limits for seeking EEO counseling.
Accordingly, the Agency dismissed the entire complaint. The instant appeal followed. On appeal, Complainant argues that she initiated EEO contact on October 17, 2010, not on June 10, 2011, as indicated by the Agency in its final decision.
ANALYSIS AND FINDINGS
Claims 1 and 2
At the time of the events in claims 1 and 2, Complainant's temporary term of employment with the Agency had expired and she was with the Agency as a participant in its work-study program. As such, the Agency found that Complainant was not an employee entitled to use of the 29 C.F.R. Part 1614 EEO complaint process.
A review of the record supports a finding that Complainant was a beneficiary of an Agency educational program rather than an Agency employee. We note, for instance, that the Agency's personnel office does not maintain any employment or other type of personnel record on work-study students like Complainant. The Commission has previously held that trainees in the Agency's work-study programs are not employees within the meaning of the EEOC's regulations. See West v. Department of Veterans Affairs, EEOC Appeal No. 01A45819 (February 23, 2005); Meador v. Department of Veterans Affairs, EEOC Appeal No. 05920836 (April 1, 1993).
Therefore, we find that the Agency's dismissal of claims 1 and 2 for failure to state a claim was proper and is AFFIRMED.
Claims 3 - 12
While the record establishes that Complainant was hired as a temporary employee of the Agency during the period of time covered by claims 3-12, EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that an Agency may dismiss a complaint on the grounds of untimely EEO Counselor contact. The record discloses that the alleged discriminatory events occurred from August through October 2010, but Complainant did not initiate contact with an EEO Counselor until June 10, 2011, well beyond the 45-day limitation period. We find that Complainant had or should have had a reasonable suspicion of discrimination more than 45 days prior to her initial contact with an EEO Counselor.
Complainant alleges that she contacted an EEO counselor much earlier that June 2011, but has provided no proof of this claim. Complainant also asserts that she was unaware of the time period for making timely EEO contact. However, the record supports a finding that Complainant had undergone training which addressed the forty-five day limitation period for making timely EEO Counselor contact. For these reasons, we find that Complainant has not presented adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation period beyond forty-five days.
The Agency's final decision dismissing Complainant's formal complaint for failure to state a claim (Claims 1 and 2) and on the grounds of untimely EEO Counselor contact (Claims 3 - 12) is AFFIRMED.
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
May 30, 2012
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1 - 12.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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