01A04747
11-01-2000
Clifton E. McKinnis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Clifton E. McKinnis v. Veterans Affairs
01A04747
November 1, 2000
.
Clifton E. McKinnis,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04747
Agency No. 200K-1224
DECISION
On June 23, 2000, complainant filed a timely appeal with this Commission
from an agency decision pertaining to his 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The Commission accepts the appeal in accordance with 29
C.F.R. �1614.405.
On February 23, 2000, complainant contacted the EEO office regarding
claims of discrimination based on race and age. Informal efforts to
resolve complainant's concerns were unsuccessful. Subsequently, on
April 4, 2000, complainant filed a formal complaint. The agency framed
the claims as follows:
Working Conditions
On December 7, 1999, management's failure to provide a safe working
environment resulted in complainant's exposure to ethylene oxide gas
(ETO); and,
(2) Following complainant's exposure to ETO on December 7, 1999,
agency officials (e.g., medical staff, industrial hygienist and safety
officer) failed to follow proper medical procedures to determine his
level of exposure.
The agency issued a decision, on May 26, 2000, dismissing the complaint
for untimely EEO Counselor contact. Specifically, the agency determined
that complainant's February 23, 2000 contact was 78 days after the alleged
December 7, 1999 incident and therefore beyond the time limitation.
The agency noted that complainant had attended an EEO training session,
wherein the 45-day time limitation was discussed. Further, when asked
why he delayed in reporting the incident, complainant explained that
his supervisor was trying to obtain information and continuation of
pay for him. Complainant also asserted that, with respect to claim
(2), he was not aware of the tests for determining exposure levels.
The agency concluded, however, that complainant was in possession of
such information as early as December 8, 1999. Claim (2) was also
dismissed for failure to state a claim. According to the agency,
other than complainant's disagreement over the ETO findings and method
of treatment, there was no indication that complainant suffered a harm
or loss for which there is a remedy.
Complainant makes no new contentions on appeal.
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.
Regarding claim (1), the record reflects that complainant's purported
exposure to ETO occurred on December 7, 1999. Complainant did not contact
the EEO office until February 23, 2000, which is beyond the 45-day time
limitation with regard to the December 7, 1999 ETO exposure incident.
When asked why he waited to contact the EEO Counselor, complainant stated
that his supervisor and the Acting Chief of EMS Service �were handling
the matter on my behalf in trying to obtain information and Continuation
of Pay (COP).� The Commission has long held that internal appeals or
informal efforts to challenge an agency's adverse action do not toll
the running of the time limit to contact an EEO counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038(June 9,
1989); Williams v. United States Postal Service, EEOC Request No. 05910291
(April 25, 1991). Accordingly, complainant's attempt to resolve his
concerns through his supervisor is not sufficient to toll the 45-day
time limit.
Complainant asserted in claim (2) that he was not aware of the testing
procedures that can determine the level of exposure to ETO until he read
the public health information on February 22, 2000. The agency argues
that complainant was provided with the cited health information on the day
he was treated for the ETO exposure, citing the �December 7, 1999 11:59"
print date included on the public health statement. Moreover, the agency
provided copies of e-mails, dated early January 2000, wherein complainant
disagreed with the ETO monitoring system. Complainant does not challenge
the agency's assertions. Therefore, we find that complainant should
have reasonably suspected discrimination at the time he was exposed to
ETO and treated.
Because of our disposition we do not consider whether claim (2) was
properly dismissed for failure to state a claim.
Accordingly, the agency's decision dismissing both claims raised in the
instant complaint for untimely EEO Counselor contact was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 1, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.