0120093659
12-18-2009
Martin Gray, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Martin Gray,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093659
Agency No. 2003-0549-2009102123
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 13, 2009, dismissing his formal 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.
On March 13, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On June 17, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race and sex when:
he was subjected to harassment from October 2008 through January 21,
2009, resulting in his constructive discharge.
In its August 13, 2009 final decision, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact, asserting he did not contact the EEO
Counselor within the required 45-day limitation period. The agency noted
that a review of the record reflects that complainant tried to resolve the
issue through the chain of command before filing the instant complaint.
The agency determined that complainant's use of an internal agency
procedure does not toll the time limit for initial EEO contact.
On appeal, complainant argues that he was not aware of the 45-day
limitation period for contacting an EEO Counselor. Complainant further
states "I knew that there was a 90 day timeframe; I thought I was within
that time frame to the best of my knowledge. I was off in my calculation
by 4 days [emphasis in the original]."
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.
The Commission determines that the agency properly dismissed the instant
complaint for untimely EEO Counselor contact. The record indicates that
the last alleged date of discrimination occurred on January 21, 2009,
but that complainant did not initiate contact with an EEO Counselor until
March 13, 2009, which is beyond the forty-five day limitation period.
The record contains a memorandum dated August 6, 2009 from the EEO Manager
(M1). Therein, M1 stated that from September 2, 2008 through September
4, 2008, complainant attended EEO related training when he attended the
New Employee Orientation (NEO).1 M1 further stated that she was aware
of the information provided during the NEO. Specifically, M1 stated
that subjects discussed during the NEO "included Prevention of Sexual
Harassment and No Fear Act. The EEO process including EEO time frames
for processing an EEO complaint are included in these training courses.
Included is the agenda for NEO whereby you can see that the EEO process
was discussed." M1 also stated that EEO posters were on display in
complainant's facility that contained the 45-day limitation period.
M1 stated that the EEO posters "are located on the EEO bulleting boards
in building one and building two. They are also posted on all bulletin
boards in all work areas. The EEO posters have been located on these
billboards since 2003."
The record also contains a copy of complainant's NEO signed by
complainant reflecting that he underwent orientation from September 2,
2008 to September 4, 2008; and a copy of NEO agenda which outlined the
45-day limitation period for contacting an EEO Counselor. The record
contains a copy of the EEO poster outlining the 45-day limitation period
and pictures of the EEO posters posted on the billboards in buildings
1 and 2. Based on these circumstances, we find that complainant had
constructive knowledge of the applicable time limits. In addition, we
note that complainant suggested the possibility of discrimination when
he attempted to resolve his issue through an internal agency process,
and therefore, demonstrated he suspected discrimination at that time.
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
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 (S0408)
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 (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 18, 2009
__________________
Date
1 The record reflects that M1 inadvertently identified the date of NEO as
September 29, 2008 instead of from September 2, 2008 through September 4,
2008.
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0120093659
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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