01A23554_r
12-04-2002
Orsburn Stone, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Orsburn Stone v. Department of Veterans Affairs
01A23554
December 4, 2002
.
Orsburn Stone,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23554
Agency No. 200P-0593-2002102363
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, issued on May 23, 2002, dismissing 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On March 20 2002, complainant contacted the EEO office regarding
discrimination claims based on race, sex, disability and age. Informal
efforts to resolve complainant's concerns were unsuccessful. On May 5,
2002, complainant filed a formal complaint.
In its final decision, the agency framed the claims as follows:
In January 2002, complainant was offered a position at grade level,
Nurse II. Complainant declined that offer believing that he has been
rated too low and that he was previously a Nurse III, step 11 with the
agency in Detroit, Michigan prior to his resignation in 1997.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency noted that when complainant was asked why
he did not contact the EEO office prior to March 2002, complainant
stated that after he declined the job offer in January 2002, he
contacted an attorney who advised him to file a complaint with a state
agency (the Nevada Equal Rights Commission). The agency further noted
that complainant claimed he was never informed by the Equal Rights
Commission that it did not have jurisdiction over federal agencies.
The agency further noted that complainant claimed that the date of
the alleged discriminatory event occurred on March 12, 2002, when he
received a letter from a Chief of the Human Resources Management Service
in response to his written request asking for information concerning the
areas where requisite professional expertise and nursing experience was
not evidenced in order to qualify for a Nurse III appointment.
The agency determined that complainant had, or should have had, a
reasonable suspicion of unlawful employment discrimination in January
2002, and not on March 12, 2002. The agency found that complainant's
EEO contact on March 20, 2002, is beyond the forty-five (45) day
limitation period. In addition, the agency concluded that prior to his
resignation from previous agency employment in 1997, complainant had
attended an orientation program and a seminar which informed him of the
EEO discrimination complaint process and time frames.
On appeal, complainant states �I was aware of the 45-day time frame
and when I presented the complaint to Nevada Equal Rights Commission
30 Jan 2002 I commented about the appointment I was given for 3-11-02,
they stated the clock stops here as they dated and stamped my complaint.�
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.
Here, complainant contends that he did not suspect discrimination
until March 12, 2002, when he received a letter from a Chief of the
Human Resources Management Service in response to his written request
for additional information concerning the qualifications for a Nurse
III appointment. The record indicates that complainant had or should
have had a reasonable suspicion of discrimination in January 2002,
but that he did not initiate contact with an EEO Counselor until March
20, 2002, which is beyond the forty-five (45) day limitation period.
Complainant has not presented a persuasive argument or evidence sufficient
to warrant an extension of time limit for initiating EEO contact. Thus,
we find that the agency properly dismissed complainant's complaint for
untimely EEO Counselor contact. Accordingly, the agency's final decision
dismissing complainant's complaint is 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
December 4, 2002
__________________
Date