0120113966
10-18-2012
Maria Coats, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Maria Coats,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113966
Agency No. 200I-0546-2011101511
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 12, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Staff Nurse at the Agency's Miami, Florida Veterans Affairs Medical Center.
On January 19, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 3, 2011, Complainant filed the subject formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the basis of disability when:
since May 2008 and as recently as January 2011, she was not issued a key to the medicine room, and she was never given the opportunity to serve as Acting Charge Nurse.
In its July 12, 2011 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory events occurred since May 2008 when Complainant was not issued a key to the medicine room and she was never given the opportunity to serve as Acting Charge Nurse. The Agency determined, however, that Complainant did not initiate EEO Counselor contact until January 19, 2011, which it found to be beyond the 45-day limitation period.
Further, the Agency noted that Complainant was asked to provide an explanation for her delay in initiating EEO Counselor contact. Complainant stated that she did not contact an EEO Counselor in May 2008, because she was then a new employee. Complainant stated further that she was not concerned with who was assigned Acting Charge Nurse until a few months before her anniversary date of May 2009, when she asked her supervisor about serving as Acting Charge Nurse. The Agency noted that because Complainant did not, in the explanation for the delay, make any reference to not having been issued a key during the relevant period, the Agency assumed that Complainant's explanation was applicable to this matter as well.
Complainant also stated that she did not report the alleged discriminatory events because she did not see it and because she may have been "naive." The Agency stated that during the relevant period, Complainant attended training classes that specifically provided information on the requisite 45-day time limit for initial contact. Moreover, the Agency indicated that because EEO posters with timeframes were on display in Complainant's workplace, she was, or should have been familiar with the 45-day limitation period.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that as a military veteran and VA Nurse for over 20 years she was appalled "at the treatment I have received. When I started working at OSAC it didn't cross my mind that someone working taking care of veterans like myself and also a mental health nurse with over 30 years of experience will discriminate against a disable veteran. I never saw it as discrimination until I spoke with other people that open up my mind to what was really happening and it was then I officially made my complaint."
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 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The record contains a copy of Complainant's letter dated July 7, 2011. Therein, Complainant stated "I did not contact a counselor in 2008 because I was new at work (May 2008) and I had not been oriented to that position...I did not report this before because I did not see it, or maybe I was just too naive." The record also contains a copy of Complainant's training history summary. The record further reflects that on May 15, 2008, November 13, 2008, and January 18, 2011, Complainant attended the No FEAR Notification & Federal Employee Antidiscrimination and Retaliation Act and Prevention of Sexual Harassment & EEO Complaint Process training classes. However, Complainant did not initiate contact with an EEO Counselor until January 19, 2011, beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding her claims more than 45 days prior to her initial contact with an EEO Counselor.
We note that Complainant, on appeal, did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
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
October 18, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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