01a03846
08-11-2000
Marilyn J. Clove-Kelley, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Marilyn J. Clove-Kelley v. Department of Veterans Affairs
01A03846
August 11, 2000
.
Marilyn J. Clove-Kelley,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03846
Agency No. 200K-1282
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 31, 2000, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant contacted an EEO Counselor on January 4, 2000, concerning
her claim of harassment by a supervising physician at her place of work.
When her concerns were not resolved, complainant filed a formal complaint
March 6, 2000, claiming that she was subjected to harassment and a hostile
work environment on the bases of race, religion, sex, national origin,
and age when:
On January 6, 1999, she brought the wrong patient into a procedure room,
and when she later returned with the correct patient, the supervisory
physician would not allow her to assist in the scheduled procedure; and,
On November 10, 1999, the supervisory physician pushed her hands away
from a patient and took over the procedure she was performing, and then
publically criticized her performance.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency determined that complainant failed to
contact an EEO counselor within forty-five days of either incident of the
claimed harassment. In its decision, the agency noted that complainant
claimed that the delay in contacting an EEO Counselor was due to her
waiting for management to set up a mediation to resolve the dispute.
The agency found that this was not a sufficient reason to toll the
time limit. Specifically, the agency found that choosing to engage
in a mediation outside the EEO process was tantamount to choosing
another venue for resolution, and did not excuse untimely EEO contact.
The agency also indicated that complainant knew the time limits because
of her attendance at several EEO informational sessions. Alternatively,
the agency dismissed the complaint for failure to state a claim because
the two incidents identified by complainant did not render her aggrieved,
and were not sufficiently severe to rise to the level of an actionable
claim of harassment.
On appeal, complainant argues that her EEO Counselor contact was timely
because she contacted the Counselor within forty-one days of the date
a management official told her she would be notified about scheduling
a mediation in her case, but failed to do so. In response, the agency
repeats the arguments in its final decision.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) requires
that complaints of discrimination should be brought to the attention
of the EEO Counselor within forty-five days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, with
forty-five 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 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, and 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.
We agree with the agency that waiting for notification regarding
mediation outside of the EEO process does not toll the time limit for
contacting an EEO Counselor, and we do not find the agency's lack of
promptness in notifying complainant about the mediation scheduling
to be a sufficient reason to waive the time requirement in this case.
Moreover, complainant does not claim that she was unaware of the time
requirement for contacting an EEO Counselor.
Accordingly, we find that the agency properly dismissed the instant
complaint for untimely EEO contact, and the dismissal is hereby
AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 11, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In light of this determination, we will not address the agency's
alternative grounds for dismissal.