0120122327
10-03-2012
Tonya Thompson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tonya Thompson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122327
Agency No. 200306352011104829
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 2012, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent at the Agency's VAMC facility in Oklahoma City, Oklahoma. The record indicates that Complainant contacted an EEO Counselor on September 13, 2011 regarding her forced resignation on May 13, 2011. Complainant alleges that an incident occurring on April 28, 2011 forced Complainant to resign from her position with the Agency. Specifically, Complainant alleges that on April 28, 2011, Complainant's co-worker poked Complainant on her back and told Complainant to pay attention during a staff meeting. Complainant further alleges that her supervisor, identified by Complainant as the responsible management official, did not address the incident despite the fact that she was aware that it had occurred. The record further indicates that during her contact with the EEO Counselor on September 13, 2011, poking incident on April 28, 2011 was the only one cited by Complainant that led to her decision to resign. According to the report of the EEO Counselor, Complainant felt that resignation was her only choice and that she had to remove herself from the environment she believed to be discriminatory. However, in her December 19, 2011 formal complaint Complainant identified several other incidents that led to her decision to resign from the Agency. In her formal complaint, Complainant alleged, that because of her race, (African-American) and in reprisal for her prior EEO activity, she was repeatedly questioned about her whereabouts when she was found away from her desk; that she was advised after she took occasional and allowable "smoke breaks" that her smell bothered other employees and that a memorandum regarding personal hygiene and choices affecting others was circulated throughout the office where Complainant worked. Complainant also alleged that she was not permitted extra time to report to work after she suffered a knee injury, so that she could take her children to school. Complainant alleges that she was treated less favorably than other Caucasian employees with respect to other terms and conditions of her employment including requesting leave pursuant to the Family Medical Leave Act, job training, and being required to report to work during a severe winter storm.
In its final decision dated April 9, 2012, the Agency determined that Complainant failed to contact an EEO Counselor in a timely manner. Specifically, the Agency found that Complainant's contact of an EEO Counselor on September 13, 2011 regarding Complainant's resignation on May 13, 2011 was beyond the relevant time limitation for timely EEO contact. In addition, the Agency found that Complainant's formal complaint addressed issues not previously counseled by the EEO Counselor. Specifically, the Agency determined that the sole issue brought to the attention of the EEO Counselor on September 13, 2011, was the April 28, 2011 incident involving Complainant's co-worker allegedly poking her back at a staff meeting. Moreover, the Agency determined that Complainant acknowledged her untimely contact of an EEO Counselor concerning the circumstances surrounding her forced resignation, stating that she "was waiting and hoping that the union would assist her." In her statement on appeal, Complainant again acknowledges that her EEO Counselor contact was untimely concerning the instant complaint. However, Complainant maintains that her delay was caused in part, by the fact that she was "waiting on the grievance process." In addition, Complainant alleges that she was hospitalized several times due to "overwhelming stress," which should be seen as a mitigating factor warranting a waiver of the relevant EEO Counselor contact limitations.
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. 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.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
EEOC Regulation 29 C.F.R. � 1614.604(c) provides for waiver, estoppel or equitable tolling of the time limits if a Complainant presents acceptable information/documentation showing she was prevented by circumstances beyond her control from meeting the time period deadline. The record discloses that the alleged discriminatory event Complainant's resignation, occurred on May 13, 2011, but Complainant did not initiate contact with an EEO Counselor until September 13, 2011, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. In reaching this conclusion, we note that although Complainant stated that she experienced anxiety and panic attacks as a result of the Agency's alleged conduct; she has not presented persuasive evidence that she was so incapacitated by her condition that she was unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992): Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). In addition, the Commission rejects Complainant's argument on appeal that a waiver of the time limits is warranted because she "was waiting on the grievance process" The filing of a grievance does not toll the time limit for contacting an EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093 (June 24, 1993).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed for the reasons set forth herein.
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
October 3, 2012
______________
Date
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0120122327
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122327