0120101665
08-06-2010
Connie Hudson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Connie Hudson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101665
Agency No. 200J-0325-2009104450
DECISION
Upon review, the Commission finds that the Agency's decision dated February 9, 2010, dismissing Complainant's complaint due to untimely EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency's decision dismissing the complaint is AFFIRMED.
BACKGROUND
In its decision, the Agency identified the complaint as whether Complainant was discriminated against based on age (over 40) and race (Black) when she was subjected to hostile work environment harassment in that:
(1) In November 2003, management failed to upgrade her position in a timely manner while an identified white male coworker's position was upgraded without question;
(2) On April 15, 2009, management failed to accurately certify her annual performance appraisal when she was rated as an accounting technician instead of a fiscal clerk;
(3) In April 2009, management used policy and regulations as an excuse not to promote her, but went against policy and regulations to promote the identified coworker;
(4) On July 28, 2009, she was denied an opportunity to attend training; and,
(5) On August 3, 2009, she learned that the identified coworker's (Complainant retired on June 30, 2009) position had been reclassified in a matter of one year of service which resulted in a grade increase from GS-6 to GS-7 while her reclassification took almost seven years.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action.
With regard to claims (1) through (3), we find that the alleged incidents occurred in or prior to April 1009. Complainant contacted an EEO Counselor on August 25, 2009, which was beyond the 45-day time limit set by the regulations.
With regard to claims (4) and (5), Complainant states that she was not alleging that she was denied training, but rather that the identified coworker, who was hired as Program Support Assistant, GS-6, was groomed to be qualified for the Management Assistant, GS-7 position, and she was not. Complainant's March 9, 2010, Appeal Brief, at 1. Complainant indicated that since December of 2001, she was a Fiscal Clerk, GS-6. Complainant claimed that in November 2003, she completed a course in simplified purchasing and was certified under the federal acquisition regulations as a Purchasing Agent, GS-7. Complainant's Complaint of Employment Discrimination, Attachment, at 1. Complainant also claimed that management, however, failed to change her classification at that time up until about seven years later when management ultimately announced shortly before her retirement that they were processing the upgrade of her position to GS-7. Id. Complainant, nevertheless, retired on June 30, 2009, from her employment at the Agency as GS-6.
After a review of the record, we find that in claims (4) and (5), Complainant was actually alleging her denial of her position upgrade which occurred in November 2003, described in claim (1). Thus, we find that these claims are more properly dismissed due to untimely EEO Counselor contact, as discussed above, rather than for failure to state a claim pursuant to � 1614.107(a)(1).
Complainant maintains that he did not know about the alleged discrimination until August 3, 2009, when he learned of the identified coworker's upgrade. However, the record indicates that Complainant sent an electronic message about her position misclassification to her manager on May 28, 2009. Complainant's September 11, 2009, Step 3 Grievance, at 1. In response, the manager offered her to upgrade her position, but Complainant retired. Id.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent. In this case, we find that Complainant should have suspected discrimination, if not at the time of the alleged incident in November 2003, at the time when she complained to the manager about her position misclassification on May 28, 2009, or at the latest when she retired on June 30, 2009. Thus, we find that Complainant's EEO contact on August 25, 2009, concerning her misclassification of her position was beyond the 45-day time limit set by the regulations.
Accordingly, the Agency's final decision 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
8/6/10
__________________
Date
2
0120101665
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013