0120151520
09-10-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151520
Agency No. 200J01AL2015101454
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 13, 2015, 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 Supervisory Management and Program Analyst GS-14, at the VA Procurement and Logistics Office (Data Collection and Extraction - DCEP) in Westchester, Illinois.
On February 19, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 15, 2014, Complainant was denied access to a copy of a settlement agreement filed by an employee.
2. On August 6, 2014, Complainant sent an e-mail to three other management officials, asking what her role was regarding compliance with a settlement agreement for an employee, but did not receive a response.
3. On October 29, 2014, Complainant was rated "fully successful" on her 2013/2014 performance appraisal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEQ Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 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. (Complainant v. United States Postal Service (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012))
We note that Complainant identified the date of her third claim of discrimination as December 8, 2014, which is within the 45 day limitation period. However, we agree with the Agency's determination the 45 day limitation period was triggered on October 29, 2014, the date of the personnel action (receipt of in her 2013/2014 performance appraisal) and when Complainant first learned that she was rated "fully successful" instead of "outstanding." On December 8, 2014, Complainant received a second stage denial of her request for review of her performance appraisal. Complainant's argument that she was waiting to complete this review process before initiating EEO counseling is not persuasive. The record reflects that Complainant was aware of the 45 day limitation period, and she first experienced "reasonable suspicion" on the day she received the performance appraisal, October 29, 2014.
As the most recent of the alleged discriminatory events occurred on October 29, 2014, and Complainant did not initiate contact with an EEO Counselor until January 9, 2015, which was beyond the forty-five (45) day limitation period, all three claims are untimely.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2015
__________________
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