0120093516
12-10-2009
Jimmie L. Miller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jimmie L. Miller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093516
Agency No. 200L06142009102783
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 21, 2009, dismissing his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time the events at issue arose, complainant was employed by
the agency as a Housekeeping Aide at its VA Medical Center in Memphis,
Tennessee. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Black), disability, age, and
reprisal for prior protected EEO activity when:
1. On October 16, 2007, complainant received a proposed notice of 14
day suspension which was subsequently sustained with an effective date
beginning November 14, 2007, and
2. On December 12, 2008, complainant received a proposed notice of
removal from federal service which was sustained with an effective date
of February 20, 2009.
In its final decision, the agency dismissed the complaint, pursuant to
29 C.F.R. � 1614.107(a) (2), for failure to adhere to established time
frames for contacting an EEO counselor. In the alternative, the agency
also dismissed claim 1, pursuant to 29 C.F.R. � 1614.107(a)(4), for
electing to pursue the same matter before the Merit Systems Protection
Board (MSPB). 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 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 record indicates that complainant first contacted an
EEO counselor to raise these matters on April 28, 2009, exceeding the
45-day time limitation.
However, on June 12, 2009, the agency sent complainant a letter requesting
additional information as to why he exceeded the 45-day time requirement
for contacting an EEO counselor. In his June 20, 2009 response,
complainant indicated that he did not contact a counselor because his
letter of removal only indicated that he had a right to appeal his removal
to the Merit Systems Protection Board (MSPB), and did not provide EEO
complaint rights.
In its dismissal decision, the agency asserts that despite the rights
provided complainant in his letter of removal, complainant knew or
should have known of the relevant time frames for contacting an EEO
counselor because he had attended a number of relevant training sessions,
and the facility had EEO-related posters on display that contained the
relevant time frames. In addition, the agency noted that complainant
had experience filing previous EEO complaints. With regard to claim 1,
the agency found that complainant had filed an appeal of the suspension
with the MSPB in 2007, prior to filing the instant formal EEO complaint
on June 9, 2009.
After careful review of the record, the Commission concurs with the
agency's dismissal of claim 1 concerning the 2007 suspension as untimely
raised and previously raised with the MSPB. The agency's dismissal of
this claim is affirmed.
However, the Commission finds the agency improperly dismissed claim 2
concerning the February 2009 removal. The Commission recognizes that
complainant exceeded the 45-day limitation period by approximately
three weeks. The Commission also acknowledges that agency's proffered
evidence that complainant was aware of the relevant limitation period.
However, we conclude that this is an appropriate case for extending the
limitation period. We find credible complainant's assertion that he was
confused about whether or not his removal could properly be raised in
the EEO process because the letter of removal only gave him rights to
appeal to the MSPB. The issue then is not whether or not complainant
knew about the limitation period, which the agency's evidence suggests
he did, but whether he knew that he could utilize the EEO complaint
process at all to challenge his removal. Because of this confusion,
and the relatively short period of time by which complainant exceeded
the regulatory time frame, we reverse the dismissal of claim 2 and remand
it to the agency for further processing.
Accordingly, the agency's final decision dismissing claim 2 of
complainant's complaint is reversed and the claim is remanded to the
agency for processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (removal)
in accordance with 29 C.F.R. � 1614.108 et seq. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
December 10, 2009
__________________
Date
2
0120093516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093516