01991019_r
09-20-2001
John B. Westover, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
John B. Westover v. Department of Agriculture
01991019
September 20, 2001
.
John B. Westover,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991019
Agency No. 950828
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On May 10, 1995, complainant contacted the EEO office regarding
claims of discrimination based on race, sex, disability and reprisal.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on August 21, 1995, complainant filed a formal complaint.
The agency, in its decision, framed the claims as follows:
in November 1994, complainant was not selected for the position of
Veterinary Medical Officer, but a female was noncompetitively placed in
the position;
(2) complainant received a poor performance appraisal for FY1994;
(3) in November 1994, complainant's supervisors were changed;
(4) in November 1994, complainant was denied a hardship transfer; and,
(5) in October 1994, complainant was denied training.<1>
On September 21, 1998, the agency issued a decision dismissing the
complaint for untimely EEO Counselor contact. Regarding claim (1),
the agency stated that the Veterinary Medical Officer position was
advertised on November 14, 1994, but was subsequently canceled and filled
noncompetitively. The agency determined that, although complainant
contends that he only learned about the filling of the position in April
1995, complainant referred to the placement of the female employee
previously, in a December 14, 1994 letter. Regarding claim (2), the
agency determined that complainant received his performance appraisal for
FY �94 on October 7, 1994. Regarding claim (3), the agency determined
that complainant indicated that he received notification of the change
in supervisors on November 14, 1994. Regarding claim (4), the agency
concluded that complainant was informed in November 1994 that his duty
station was El Paso, not Fort Collins. In claim (5), complainant contends
that on August 30, 1994 he submitted a proposal and application for Long
Term Training and Development Program but never received a response.
However, the agency concluded that during an October 1994 performance
appraisal meeting complainant's supervisor allegedly threw the proposal
on the floor and told complainant that the proposal would not accomplish
anything. Moreover, the agency determined that even if complainant was
not officially informed about the denial of the transfer (claim (5))
and training (claim (4)) requests, they were denied in the agency's
February 14, 1995 response to his grievance. Therefore, after finding
that each of the alleged events occurred more than forty-five days before
complainant's May 10, 1995 EEO Counselor contact, the agency dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant presents no contentions on appeal.
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.
Claim (1)
Complainant contends that he was discriminated against when he was not
selected for the Veterinarian Medical Officer position and a female
employee (Person A) was noncompetitively placed in the position.
According to complainant, the position was announced in November 1994
and he applied. In January 1995 he was notified that the announcement
was canceled. Complainant argues that it was not until April 15, 1995,
when he was informed by another employee, that he learned that Person
A had been placed in the position.
The Commission, however is not persuaded by complainant's arguments.
Although complainant maintains that he did not know that Person A had
been given the position until April 1995, the record contains a December
14, 1994 letter from complainant to the agency. Therein, complainant
specifically referred to the placement of Person A to the position prior
to the announcement's closing date. Therefore, we find that complainant
waited more than forty-five days to contact the EEO counselor regarding
the job vacancy. Accordingly, the agency's decision to dismiss claim
(1) was proper.
Claim (2)
In claim (2), complainant asserts that he was discriminated against when
he received a poor performance appraisal for FY �94. A review of the
record reveals complainant's admission that he received the appraisal
on October 7, 1994. Therefore, we find his May 10, 1995 contact to be
well beyond the time limitation. Complainant has failed to provide
sufficient justification for extending or tolling the time limit.
Accordingly, claim (2) was properly dismissed.
Claim (3)
Complainant also contends that he suffered discrimination when his
supervisors changed. The record contains a copy of a November 14,
1994 letter, from the Director, informing complainant that �[e]ffective
immediately, your position will report to the Texas Area Veterinarian In
Charge Dr. [Person B] . . . Any questions regarding your status should
be directed to [Person B]. . . .� Consequently, the Commission finds
that complainant should have contacted the EEO office, regarding the
supervisor change, within forty-five days of receiving the notification.
Complainant's May 10, 1995 contact regarding claim (3) was untimely.
Claim (4)
In claim (4), complainant argues he was discriminated against when
in November 1994 his request for a hardship transfer was denied.
While it is unclear from the instant record whether the agency ever
provided complainant with a specific denial, the record does show that
the matter was addressed through complainant's grievance. In a February
14, 1995 response to the grievance, which included the transfer issue,
the agency stated that the request was denied. We find that complainant
was aware of the denial at the time he filed his grievance, and at the
latest, when he received the agency's February 1995 letter. Therefore,
the agency's decision to dismiss claim (4) for untimely EEO Counselor
contact was proper.
Claim (5)
Finally, the Commission finds that complainant's EEO Counselor contact
regarding the denial of training was untimely. Complainant claims that
on August 30, 1994 he submitted a proposal and an application for the
Long Term Training and Development Program, but received no response.
However, in his affidavit, complainant attests that during an October 1994
meeting his supervisor threw the proposal on the floor and told him that
the proposal would not accomplish anything. Moreover, in the agency's
February 14, 1995 letter, noted above, complainant was informed that
his training request was denied. Therefore, we find that complainant
should have contacted the EEO office more than forty-five days prior to
May 10, 1995.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 20, 2001
__________________
Date
1Although the agency did not number the claims in its decision, we do
so here for clarification.