05a40515
08-04-2005
Frankie E. Nichols, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Frankie E. Nichols v. Department of Veterans Affairs
05A40515
August 4, 2005
.
Frankie E. Nichols,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A40515
Appeal No. 01A30165
Agency No. 200M-02-102075
GRANT
On March 12, 2004, the Department of Veterans Affairs (agency)
timely requested reconsideration of the decision in Frankie E. Nichols
v. Department of Veterans Affairs, EEOC Appeal No. 01A30165 (February
12, 2004). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record, the
Commission finds that the request meets the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to grant the
request.
On March 4, 2002, complainant initiated contact with the agency
EEO office. Complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race and color with respect
to her duty hours and reinstatement as Food Service Worker. Informal
efforts to resolve complainant's concerns were unsuccessful. On May 22,
2002, complainant filed a formal complaint.
In its final decision, dated August 5, 2002, the agency determined that
complainant's complaint was comprised of the following two claims:
on or about February 20, 2002, complainant requested that her tour be
changed to the evening shift. Management agreed to allow her to work
late for two days per week as long as she would not be in the same
kitchen as her husband. Complainant is aware that a team of mother and
daughter works in the same kitchen; and
on December 20, 1998, complainant was given an appointment as a
part-time, Food Service Worker, WG-2, although she was a WG-4, Food
Service Worker, when she resigned on August 21, 1998.
Thereafter, on June 14, 2002, complainant amended her complaint to include
an additional claim of reprisal concerning time and attendance. In her
new claim, complainant claimed:
(3) From May 20, 2002 through May 24, 2002, complainant was charged
Absent Without Leave (AWOL).
On August 5, 2002, the agency issued a decision dismissing claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The agency accepted claims (1) and (3) for investigation.
Regarding claim (2), the agency determined that complainant initiated
contact with the agency EEO office on March 4, 2002, concerning the
December 20, 1998 appointment, which was well beyond the forty-five-day
time limitation. The agency acknowledged that complainant stated
to the EEO Counselor that she "did not know the steps� necessary to
file an EEO complaint. The agency determined that complainant was
nevertheless aware, or should have been aware, of the EEO complaint
process. Specifically, the agency stated that complainant received
an Employee Handbook at her reinstatement that clearly explained the
complaint process and time limitations for EEO contact, as well as
the Medical Center's discrimination complaint procedures (in the form
of Memorandum 00-29, � attachment A�), which described �an employee's
timely contact with an EEO Counselor.� Finally, the agency stated that
on June 5, 2001, complainant attended a training session entitled �EEO
Process/Understanding the EEO Process.�
On September 4, 2002, complainant withdrew claims (1) and (3), thereby
rendering claim (2) ripe for adjudication. On September 29, 2002,
complainant filed an appeal from the agency's dismissal of claim (2). On
appeal, complainant argued that she �was not informed of the proper EEO
process when I originally decided to file my complaint.� Complainant
also argued that she understood that the �union was suppose[d] to
resolve the wrongful act.� Complainant also stated that she �did not
know what my options were,� and that �after performing some personal
research about the EEO process, I began to pursue my case again hoping
that the statute of limitations had not expired.�
In response to the appeal, the agency submitted a complaint file
without comment, providing various employee handbooks, memoranda,
and training materials. The agency's documents included a 1994
and 1998 copy of Memorandum 00-29; a 1998 sexual harassment policy
statement memorandum; 1991 and 1998 copies of an Employee Handbook;
and a training history summary and training materials related to a May
2001 class on �Understanding the EEO Complaints Process.�
In the previous decision, the Commission reversed the agency's
dismissal and remanded claim (2) to the agency for further processing.
The Commission determined that complainant's belief that her union �would
look out for [her] best interests," was insufficient to waive the time
limitation. However, the Commission determined that the agency failed
to show that complainant had actual or constructive knowledge of the time
limit for contacting an EEO Counselor. The previous decision noted that
one of the handbooks submitted by the agency included an inaccurate time
limit, and that it was unclear when complainant received the materials.
Regarding the memoranda, the previous decision noted that one memorandum
generally describing the agency's "EEO Policy" was issued in 1994, and
that the 1998 memorandum covered only the issue of sexual harassment.
Finally, the previous decision determined that while it appeared that
complainant attended an EEO class on June 5, 2001, the copies of the
training materials were illegible.
In its request for reconsideration, the agency argues that it submitted
ample documentation on appeal to establish that complainant knew or should
have known of the forty-five-day limitation period. The agency states
that although the Commission made reference to the 1998 memorandum on
sexual harassment contained in the record, the agency also submitted a
copy of the July 10, 1998 Medical Center Memorandum 00-29, complete with
attachment A, which described the discrimination complaint process covered
under all bases (not simply for sexual harassment), and in particular
the forty-five-day limitation period for contacting an EEO Counselor.
In its request, the agency also submits an affidavit from an EEO
Specialist indicating complainant received Memorandum 00-29 with
attachment A on December 21, 1998, as part of new employee orientation.
Additionally, the agency states that it submitted on appeal copies
of two Employee Handbooks. The agency acknowledges that although one
Handbook made reference to the old thirty-day time limit for EEO Counselor
contact, the �other� Handbook referred to the current forty-five-day time
limitation. Finally, the agency states that the record also contained
a copy of a December 22, 1998 Guide for Orientation of New Employees,
wherein complainant acknowledged receipt of her 1998 Employee Handbook,
on December 21, 1998.
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 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.
In the present case, the record shows that complainant waited until
March 4, 2002, to contact an EEO Counselor concerning her December 20,
1998 appointment as a part-time Food Service Worker, which is beyond
the forty-five-day time limitation. When asked by the EEO Counselor
to explain why she did not seek counseling during the forty-five-day
time frame, complainant indicated that she "did not know the steps that
[she] should have taken in order to file an EEO complaint." After a
thorough review of the record, however, we find that the agency has
shown that complainant was provided actual or constructive notice of
the EEO process, specifically including the forty-five-day time limit,
as part of her new employee orientation on December 21, 1998.
The record reflects that in a signed statement stamped on her single
page �Guide for Orientation of New Employees� dated December 21,
1998, complainant indicated that she �received a copy of the [agency]
Employee Handbook and understand that it is my responsibility to become
thoroughly familiar with its contents.� The accompanying Handbook
contains information describing the informal complaint process, including
the forty-five-day time limit for contacting a Counselor. Moreover,
the record also contains a copy of Medical Center Memorandum 00-29 (July
10, 1998), attachment A, which articulates the agency's discrimination
complaint procedures and expressly addresses the forty-five-day limitation
period.
Therefore, based on a review of the record, we find that complainant's
March 4, 2002 EEO Counselor contact was untimely, and that complainant
failed to provide sufficient justification for tolling or extending the
time limit for contacting an EEO Counselor. Accordingly, the agency's
properly dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2).
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to GRANT the agency's request. The decision
of the Commission in Appeal No. 01A30165 is REVERSED, and the agency's
final decision to dismiss claim (2) is AFFIRMED. There is no further
right of administrative appeal on the decision of the Commission on a
Request to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
August 4, 2005
__________________
Date