01A30231_r
07-16-2003
Rachel Macias, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Rachel Macias v. Department of Veterans Affairs
01A30231
July 16, 2003
.
Rachel Macias,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30231
Agency No. 200P-0644-2002102852
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of sex (female) when:
Complainant has been continually denied a promotion to GS-12 grade level;
Complainant's duty hours were changed in October 2000.
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 agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. With regard to the issues identified, the agency stated that
complainant failed to contact an EEO Counselor within the applicable
limitations period. The agency stated that complainant's explanation
of her delay in contacting an EEO Counselor, that she decided to pursue
the matters internally prior to contacting the EEO Office, does not
constitute grounds for waiving the applicable time period.
The record reveals that the agency sent complainant a letter dated July
23, 2002 inquiring why she failed to contact an EEO Counselor within the
45-day time limit with regard to the issues identified in her complaint.
The record contains complainant response to this inquiry dated August
6, 2002. In her response, complainant explains that her delay resulted
from attempts to work with management to take corrective action on the
disputed events.
The Commission finds that complainant initially contacted an EEO Counselor
on April 19, 2002. Complainant has failed to show that any incident of
alleged discrimination raised in the complaint occurred 45 days or less
prior to April 19, 2002. Furthermore, we find that complainant should
have reasonably suspected discrimination more than 45 days prior to her
initial EEO Counselor contact. On appeal, complainant claims that she
was unaware of the EEO process. The Commission finds that because the
agency provided complainant with an opportunity to raise this argument
prior to the issuance of its decision dismissing the complaint, we find
that such an argument may not be raised now for the first time on appeal.
Therefore, we find that the complaint was properly dismissed for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, the agency's 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
July 16, 2003
__________________
Date