0120103524
02-04-2011
Demetra P. Allen, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Demetra P. Allen,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2010-3524
Agency No. 200405582010101463
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 4, 2010, 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 AFFIRMS the Agency's dismissal of Complainant's
complaint on the basis that the formal complaint was untimely filed.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female),
and in reprisal for prior protected EEO activity under Title VII when:
1. On December 28, 2009, Complainant was informed by Human Resources
that her performance appraisal was rated incorrectly and that she did
not have an approved position description;
2. On December 28, 2009, Complainant was promised a position of Assistant
Quality Manager, GS-7 (target GS-9); and
3. On March 9, 2010, Complainant was made aware that she was being
reassigned to Surgical Service.
In its final decision, the Agency dismissed Complainant's complaint
for untimely filing of the formal complaint. The Agency found that
Complainant received a Notice of Right to File a Discrimination
Complaint (Notice of Right to File) on May 12, 2010. The Agency found
that Complainant did not file a formal complaint until June 15, 2010,
beyond the 15-day time limitation period for filing a formal complaint
under 29 C.F.R. �1614.105(d).
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she failed to file a timely formal
complaint because of miscommunication between herself and her office's
EEO Counselor. Complainant further contends that she was diligent in
meeting deadlines and expressed concerns over deadlines with the EEO
Counselor. Complainant offers as evidence her own account of a telephone
conversation and several emails between herself and the EEO Counselor,
which Complainant contends demonstrate both the miscommunications and
her own concern about meeting deadlines.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(d) provides that a Complainant must
file a formal complaint within 15 days of receipt of the Notice of Right
to File. EEOC Regulation 29 C.F.R. �1614.107(a)(2) provides for the
dismissal of complaints where the Complainant fails to file a formal
complaint within the 15-day limitation period.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission. Hathcock v. Dep't. of the Air Force.
Appeal No. 0120093324 (Jan. 22, 2010).
Where timeliness is an issue, the agency bears the burden of proof of
obtaining sufficient information to support a reasoned determination
as to whether that time limit was met. Guy v. Dep't. of Energy, EEOC
Request No, 05930703 (Jan. 4, 1994) (citing Williams v. Dep't. of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993). The Commission has previously
held that an agency may not dismiss a complaint based on a complainant's
untimeliness, if that untimeliness is caused by the agency's action in
misleading or misinforming the complainant. See Wilkinson v. U.S. Postal
Serv., EEOC Request No. 05950205 (Mar. 26, 1996).
The record discloses that Complainant received the Notice of Right
to File and a copy of the formal complaint form on May 12, 2010.
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 June 15, 2010, which is beyond
the limitation period.
Complainant contends that miscommunication between herself and the EEO
Counselor contributed to her untimely filing of the formal complaint.
Complainant describes a telephone conversation she had with the
EEO Counselor on May 18, 2010, during which the counselor allegedly
told Complainant she had 30 days to file a formal complaint and that
Complainant did not need to submit the formal complaint at that time.
The record reveals that on May 14, 2010, the EEO Counselor emailed
Complainant and stated that Complainant had 15 calendar days from the
date of receipt to file a formal complaint. On the afternoon of May
26, 2010, one day before the deadline to file the formal complaint,
Complainant emailed the EEO Counselor, stating that she was leaving for
vacation the next day and inquiring whether there was a deadline for any
paperwork she needed to submit. The EEO Counselor responded the next
day, stating that if Complainant had already filed a formal complaint,
nothing else was needed from her at that time.
The record further reveals that Complainant was aware that she had 15
days from her receipt of the Notice of Right to File to file a formal
complaint. The 15-day time limit is clearly written in bold letters on
the Notice of Right to File. The record further reveals that Complainant
was also informed of the 15-day time limit to file a formal complaint by
the EEO Counselor's May 14, 2010 email. Finally, the record discloses
that Complainant had prior EEO activity. We have consistently held that
a complainant who has engaged in prior EEO activity is deemed aware of
the time frames required for filing complaints in the EEO procedure.
See Kader, Jr. v. U.S. Postal Serv., Appeal No. 01974448 (Jun. 24, 1999)
(citing Coffey v. Dep't of the Navy, EEOC Request No. 05901006 (Nov. 16,
1990). For these reasons, we find that Complainant was clearly informed
of the 15-day time limit for filing a formal complaint.
Complainant contends that she failed to file a timely formal complaint
because she was misled or misinformed by the EEO Counselor. As discussed
above, by the time Complainant inquired with the EEO Counselor about
paperwork deadlines on May 26, 2010, she had been clearly informed of the
15-day time limit to file a formal complaint, and she was in receipt of a
formal complaint form. The EEO Counselor responded that if Complainant
had already filed a formal complaint, nothing else was needed from her.
The EEO Counselor's response was conditioned upon whether Complainant had
filed a formal complaint, which was Complainant's responsibility to do.
Thus, we find that Complainant has not offered adequate justification
to warrant an extension of the time limit for filing the complaint.
CONCLUSION
In conclusion, we find that the Agency properly dismissed Complainant's
claim for untimely filing her formal complaint. Accordingly, the Agency's
final decision dismissing Complainant's complaint 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 (Nov. 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
February 4, 2011
Date
2
01-2010-3524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103524