0120064702
06-19-2007
Sally R. Oliverio, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sally R. Oliverio,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200647021
Agency No. 2004-0540-2006102098
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated July 13, 2006, dismissing her 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. In her complaint, complainant alleged
that she was subjected to discrimination based on age (born in 1951)
and reprisal for prior protected EEO activity in 2003 (an appeal to
the Merit Systems Protection Board (MSPB) claiming an action was taken
against her because of illness-apparently a Rehabilitation Act claim)
when she was notified on November 3, 2005, that she was not selected for
promotion to the position of Program Support Assistant (OA), GS-303-07/08,
advertised under announcement numbers MP-05-65 and VAC-DR-05-0250.
Complainant was notified in writing by memorandums dated November 2,
2005 that she was referred for consideration but not selected, and of the
name of the selectee. On November 29, 2005, complainant met with the
selecting official to get an explanation of why she was not selected.
According to complainant, he gave no plausible explanation, he had no
answers to her direct questions, and she left him feeling the selection
was biased and very suspicious. She contacted the EEO office the same
day. The EEO intake sheet, which was completed the same day, indicates
that complainant was contending that she was discriminated against based
on her age when she was not selected for promotion. The intake sheet
reflects that complainant stated that the selectee was younger and less
experienced than complainant.
On the same day, complainant contacted a union representative to obtain
assistance in securing the promotion package for review. According to
complainant's appeal argument through counsel, the union explained
that they could file a grievance to gain access to the hiring records,
but she could not file a grievance and still continue with an EEO
complaint. Two days later, on December 1, 2005, complainant withdrew
her informal EEO claim in writing, indicating that at this time, she
decided not to pursue the claim through the EEO process, and that she
was withdrawing the EEO claim and wished to close it. On January 11,
2006, she filed a union grievance requesting that the union be permitted
to review the application package. After some delay, on April 4, 2006,
a union steward was permitted to review the package and at that time,
according to complainant, she was advised that the selectee was much
less qualified and much younger than complainant. Complainant contends
that this was when she first learned the selection was biased based on
age and reprisal discrimination.
Complainant reinitiated contact with an EEO counselor on April 19, 2006,
alleging age and reprisal discrimination when she was not selected for
promotion to the above position.
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) and .107(a)(2). The time limit to seek EEO counseling
shall be extended when an individual shows he did not know and reasonably
should not have known that the discriminatory action or personnel action
occurred or for reasons considered sufficient by the agency or Commission.
29 C.F.R. � 1614.105(a)(2). 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. Department of the Navy, EEOC Request No. 05970852 (February
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.
The FAD dismissed the complaint on the grounds that complainant failed
to timely initiate EEO counseling. It reasoned that complainant formed a
reasonable suspicion of discrimination on November 29, 2005, as evidenced
by her being suspicious that day of the selecting official's response to
her questions and enlisting the help of the union the same day to review
the promotion package, but did not contact an EEO counselor until April
19, 2006, beyond the 45 calendar day time limit to do so.
On appeal, complainant argues through counsel that she did not form a
reasonable suspicion of discrimination until she learned on April 4,
2006, that the selectee was younger and significantly less experienced
than herself, and repeats this in an accompanying affidavit.
Complainant withdrew her EEO contact before the counselor sent her papers
on December 2, 2005, explaining various procedural rights and the role
of the EEO counselor. Complainant argues through counsel that she was
misled by the EEO counselor into withdrawing her EEO contact. She argues
that at that time she had no knowledge about the selectee or her age, was
confused as to why she was not chosen so she contacted the EEO office,
and did not even know what basis to file the complaint until the EEO
counselor suggested age discrimination. Complainant argues that she
called the EEO counselor on December 1, 2005 saying she was uncomfortable
with her claim because he did not know anything about the selectee, but
the counselor did not advise her of the fact-finding component of an EEO
claim, nor advise her of the consequences of withdrawing her complaint.
She argues that the EEO counselor wrongly persuaded her to drop her EEO
claim because she did not have all the information necessary to support
her claim. She argues that even the most cursory EEO investigation
would have uncovered that the selectee was younger and less experienced
than complainant. Complainant's affidavit submitted with this argument
makes no statement regarding what she was told or not told by the EEO
office and counselor.
We find complainant's submissions on appeal unpersuasive. The November
29, 2005, EEO office intake sheet, which is a reliable contemporaneous
record, reflects complainant said that the selectee was younger and less
experienced. This alone shows a reasonable suspicion of discrimination.
Moreover, on that same day, complainant met with the selecting official,
and was dissatisfied allegedly because he gave no plausible explanation
on why she was not selected. As stated by complainant, she left him
feeling that the selection was biased and she was very suspicious.
Complainant has strongly suggested that she felt prior to meeting with
the selecting official that she was one of the best candidates, i.e.,
someone in human resources indicated her application was strong, an
interview panel member thought she should be selected, and complainant
previously worked in the job and was viewed as an excellent performer.
All this adds to our finding that complainant had a reasonable suspicion
of discrimination by November 29, 2005, and her efforts to have the union
review the promotion package was an attempt to get supportive facts.
The Commission has found that where a complainant "knowingly and
voluntarily withdrew his complaint .... the Commission considers the
matter to have been finally abandoned." See Tellez v. Department of
Transportation, EEOC Request No. 05930805 (February 25, 1994). The
Commission has held that a complainant may not request reinstatement
of an informal complaint unless the complaint was withdrawn pursuant
to a settlement agreement, unless there is a showing of coercion.
Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995).
Also, the dismissal of a complaint is improper if the agency's action
in misleading or misinforming the complainant resulted in the dismissal.
Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (October
17, 2005).
Complainant argues that the EEO counselor mislead her into withdrawing
her November 29, 2005 EEO contact. Significantly, all the contentions
she made regarding this were in argument through counsel, none of which
were supported by her accompanying affidavit. She does not precisely
identify what the counselor said, which is a critical matter. In argument
(not her affidavit), complainant contends that the EEO counselor did
not advise her of the fact-finding role of the EEO process. However,
in a December 2, 2005, letter to complainant, the counselor wrote that
even though he discussed his role with her, he was enclosing a document
entitled "Role & Responsibilities of the EEO Counselor." A copy of this
document sent to complainant after her second EEO contact reveals it
states the counselor is an information gatherer. Based on the record, we
find it is more likely than not that complainant withdrew her EEO contact
on the advice of the union. Complainant argued against interest that
the union informed her she could not maintain an EEO claim regarding the
non-selection and a grievance attempting to secure additional information
at the same time. Two days later, she withdrew her EEO contact.
Complainant argues though counsel that she believed that she withdrew her
EEO claim without prejudice to refiling, but does not make this contention
in her accompanying affidavit. Her withdrawal letter does not suggest
it was intended to be made without prejudice. Moreover, in its December
29, 2005, letter to complainant confirming the withdrawal and closure of
her EEO claim, the agency wrote that it is the position of the EEOC that
a knowing and voluntary withdrawal terminates further consideration of
matters raised, and there is no longer a right to file a formal complaint
over the withdrawn matters. There is no indication in the record or claim
by complainant that complainant attempted to then quickly explain to the
EEO office that she did not intend to withdraw her claim with prejudice.
Instead, she waited until April 19, 2006, to contact the EEO counselor,
after she received what she considered to be her supportive facts.
Based on the above, the FAD dismissing complainant's complaint is
affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 19, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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2
0120064702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064702