0120102553
09-23-2010
Christina Ramirez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christina Ramirez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102553
Agency No. 200P06492009104683
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 27, 2010, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
BACKGROUND
In her complaint, Complainant alleged that the on the basis of disability, she was discriminated against with respect to the following:
A. Whether the Complainant was subjected to hostile work environment harassment when:
On July 22, 2009, Complainant's supervisor began requesting that she provide additional documentation for all leave requested under the Family and Medical Leave Act (FMLA);
On July 22, 2009, Complainant received an email from her supervisor warning her about being late for work;
On August 7, 2009, Complainant received a letter informing her that she was being charged AWOL for three occasions;
On or about August 19, 2009, her supervisor refused to accept her medical documentation and requested that she provide additional proof that she had her blood drawn in the laboratory;
On August 27, 2009, she received a proposed reprimand based on a charge of Absent Without Leave (AWOL) and excessive Leave Without Pay (LWOP) that was approved by her supervisor on June 29, 2009, July 17, 2009 and July 27, 2009;
On unspecified dates, she received several emails regarding her leave usage, instructing her to notify the timekeeper of scheduled appointments, and arrival times; and what she should be doing while she is at work;
On September 10, 2009, the Agency's Lead Program Support Assistant was overly aggressive and hostile when she demanded to know who Complainant was speaking to when she took a five minute phone call in the conference room and subsequently, Complainant's supervisor sided with the Lead Program Support Assistant and informed Complainant that she is to report her whereabouts;
On September 14, 2009, Complainant overheard the Lead Program Assistant discussing the incident of September 10, 2009 with another employee;
On September 29, 2009, Complainant's supervisor notified her that there would be a fact-finding meeting;
On October 5, 2009, Complainant received notification that she was being temporarily reassigned or detailed not to exceed 90 days to the position of Quality Programs Clerk and
B. Whether Complainant was discriminated against when on September 1, 2009, she became aware that she had not been selected for the position of Program Support Assistant, GS-7, under Merit Promotion Announcement Number 09-85.
The record further indicates that Complainant sought to amend her formal complaint on April 19, 2010 regarding the following incidents of alleged discrimination also based on her disability:
C. When on October 7, 2009 she received a reprimand;
D. When on October 6, 2009 she received a letter of counseling;
E. When in August 2009, she became aware that she had been denied an award; and
F. When on February 24, 2010 Complainant received notice of a proposed suspension.
The record discloses that Complainant received the notice of right to file a formal complaint on December 17, 2009. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until March 1, 2010, which is beyond the limitation period. EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant acknowledges that she failed to file her formal complaint within 15 days as required by the Agency's Notice. Complainant maintains however, that because she and the Agency had entered into a tentative settlement agreement, she did not file her complaint until she learned that no settlement had been reached.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant received a notice of the right to file a formal discrimination complaint on December 17, 2009. The notice informed complainant that she had fifteen days from the date of receipt of the notice in which to file a formal complaint. The record further reflects that complainant did not file a formal complaint within fifteen days of her receipt of this notice but, instead filed the formal complaint on March 1, 2010.
In this matter, the record indicates that Complainant participated in ADR with the Agency on November 5, 2009. Complainant acknowledges that no agreement was executed because she and the Agency could not come to terms regarding her leave issues. In her appeal to the Commission, Complainant indicates that she believed that she and the Agency had a tentative agreement. However, in an attachment to her complaint, she indicates that as she understood, the parties, "do not have a settlement agreement and [her] issues are still valid." Upon review, the Commission finds that Complainant has failed to provide adequate justification for extending the filing time for her formal complaint. Specifically, we find that Complainant knew after the meeting on November 5, 2009 that no settlement had been reached between the parties. Moreover, the report of the EEO Counselor indicates that Complainant was advised that if the parties failed to resolve the matter through the ADR process or within 90 days of her initial counselor contact, the Agency would issue to Complainant a notice of her right of her right to file a formal complaint. The Commission further notes that EEOC Regulations provide the Complaint with the opportunity to settle during both the informal and formal process of the complaint process. In that regard, we find that Complainant failed to file her formal complaint regarding matters A and B in a timely manner in violation of established EEOC regulations. Consequently the Agency's dismissal of claims A and B in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) was proper.
The record further indicates that on March 26, 2010, Complainant attempted to amend her complaint regarding claims C, D, E, and F.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068 (March 8, 1990). In its final decision the Agency states that that "the new allegations provide both additional evidence of ...[Complainant's] original harassment claim, as well as constitute several new discrete claims; and therefore may be adjudicated." However, the Agency failed to indentify which claims it found to have added to Complainant's harassment claim, and which claims constituted new discrete claims. Upon review, the Commission finds that claims C, D, E, and F are new claims discrete from the incidents stated in Complainant's initial complaint. Therefore, in using March 26, 2010 as the date of Complainant's initial contact regarding claims, C, D, E, and F, the Commission finds that claims C, D, and E occurring in August and October of 2009 were not brought to the attention of an EEO Counselor in a timely manner. 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 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 Commission finds that Complainant had or should have had a reasonable suspicion of discrimination regarding claims C, D, and E prior to her contact of an EEO Counselor on March 26, 2010. In its final decision, the Agency also determined that claims C, D and E were untimely and therefore, the Commission finds that claims C, D, and E were dismissed in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
Finally, the Agency determined that claim F regarding a February 24, 2010 proposed suspension improperly alleged that a proposal to take disciplinary action stated a claim. Accordingly, the Agency dismissed claim F pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(5). The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Upon review, the Commission finds that Complainant has failed to demonstrate that she was harmed by the Agency's action of February 24, 2010. In that regard, we find that the Agency's decision to dismiss claim F was proper.
CONCLUSION
Upon review, the Commission finds that the Agency properly dismissed the instant complaint. Accordingly, the Agency's decision is hereby 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
Office of Federal Operations
September 23, 2010
__________________
Date
2
0120102553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120102553