Gretchen M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 13, 2016

0120143079 (E.E.O.C. Jan. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gretchen M.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143079

Agency No. 2004-VI06-2014102307

DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August
25, 2014, 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

.
At the time of events giving rise to this complaint, Complainant worked as a Chief of Non-VA
Care Service at the Agency’s facility in Salisbury, North Carolina. On May 8, 2014,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the basis of her sex (female) when on September 5, 2013, management notified her that she
would not be detailed as the acting chief of the centralized fee unit in Salem, Virginia.

In its final decision, the Agency dismissed the claim, pursuant to 29. C.F.R. § 1614.107(a)(2),
for untimely EEO counselor contact. Specifically, the Agency found that Complainant was
informed on September 5, 2013, that management did not select her for the detail at issue but
Complainant did not initiate EEO counselor contact until March 27, 2014. The instant appeal
followed.

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 45
days of the date of the matter alleged to be discriminatory or, in the case of personnel action,
within 45 days of the effective date of the action. The Commission has adopted a “reasonable

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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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
Here, the record shows that not only was Complainant informed that she was not selected for
the detail at issue on September 5, 2013, she was also told the name of the male employee who
was selected. Accordingly, we find that Complainant should have had a reasonable suspicion of
sex discrimination regarding this claim at that time. She did not initiate EEO counselor contact
until March 27, 2014, however, which is well beyond the 45-day limitation period. We note
that, on appeal, Complainant does not present persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact.
, 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.
See

29 C.F.R. § 1614.604(c).
CONCLUSION

The Agency’s final decision dismissing the instant 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
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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 Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

January 13, 2016
Date