0120102356
09-16-2010
Lirio Sanchez-Alicea, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.
Lirio Sanchez-Alicea,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration),
Agency.
Appeal No. 0120102356
Agency No. 200106722010100409
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 9, 2010, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we AFFIRM the Agency's final decision.
On October 30, 2009, Complainant contacted the EEO office. On January 30, 2010, Complainant filed the instant formal complaint
In its final decision, the Agency framed Complainant's complaint as follows:
on the basis of disability, on August 27, 2009, her position was changed from a GS-06 Pharmacy Technician to a GS-04 Program Support Clerk with pay retention, as an accommodation to her Office of Workers' Compensation (OWCP) case.
BACKGROUND
The EEO counselor's report indicated that on September 1, 2009, Complainant stated that Human Resources presented her with a document dated August 25, 2009. The counselor's report further indicated that the August 25, 2009 document indicated that Complainant would be assigned from her Pharmacy Technician position, GS-06, to the position of Program Support Clerk, GS-04.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO counselor on October 30, 2009, which was more than 45 days after the August 27, 2009 alleged discriminatory incident. Alternatively, the Agency dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) finding that she was not aggrieved.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that her formal complaint stated a different set of allegations than those stated in Agency's final decision. In this regard, Complainant contended that the Agency altered her claim.
ANALYSIS AND FINDINGS
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.
The record discloses that the alleged discriminatory event occurred at the latest on Sept 1, 2009, but Complainant did not initiate contact with an EEO Counselor until October 30, 2009, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented neither an argument nor evidence warranting an extension of the time limit for initiating EEO Counselor contact. Notwithstanding Complainant's contention, we find that the Agency's final decision correctly states her claim. Specifically, we find that the claim stated in the Agency's final decision is consistent with Complainant's statements made during pre-complaint processing. Complainant's statements are reflected in the EEO counselor's report and in other pre-complaint documents. Furthermore, we note that Complainant does not dispute the fact that she contacted the EEO counselor beyond the forty-five (45) day limitation period. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.1
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 (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 (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
___9/16/10_______________
Date
1 Because we affirm the Agency's dismissal of the complaint for the reasons stated herein, there is no need to address the Agency's alternative grounds for dismissal (i.e., for failure to state a claim).
??
??
??
??
2
0120102356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102356