0120121449
10-16-2012
Vera Lang, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Vera Lang,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121449
Agency No. 2003-0520-2012100191
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 29, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Medical Support Assistant, GS-5, at the Agency's Veterans Affairs Medical Center in Biloxi, Mississippi.
On October 14, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On November 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination in reprisal for prior EEO activity when:
on August 29, 2011, she was denied training to attend the Each Leader Individually Trained to Excel (ELITE) program.
In its December 29, 2011 final decision, the Agency dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory event occurred on August 29, 2011, but Complainant did not initiate EEO Counselor contact until October 14, 2011, which it found to be beyond the 45-day limitation period. The Agency further noted that Complainant was asked to provide an explanation for her untimely EEO Counselor contact. Complainant stated that during the relevant time there was a "lot going on."
The record contains a copy of the EEO Specialist's Report of Contact. Therein, the EEO Specialist stated that when Complainant was provided an opportunity to explain her untimely EEO contact, she stated "that she was aware of the 45 calendar day requirement to contact an EEO Counselor because she had filed previous complaints. [Complainant] further stated that the reason she did not contact an EEO Counselor at the time of these events was that 'she was busy and she had a lot going on.'"
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 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 she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The alleged discriminatory event occurred on August 29, 2011. However, Complainant did not initiate contact with an EEO Counselor until October 14, 2011, beyond the 45-day limitation period. Complainant waited forty-six days from the date of the alleged discriminatory event, on August 29, 2011, before she contacted an EEO Counselor on October 14, 2011. Complainant had or should have had a reasonable suspicion of discrimination regarding the denial of training more than 45 days prior to her initial contact with an EEO Counselor.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact 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
October 16, 2012
__________________
Date
2
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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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