01A44620_r
10-28-2004
Stanley Coleman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Stanley Coleman v. Department of Veterans Affairs
01A44620
October 28, 2004
.
Stanley Coleman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44620
Agency No. 200I-0680-2004101731
DECISION
Complainant filed this appeal with the Commission from a June 1, 2004
agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for failure to contact an EEO Counselor in a timely
manner.
In his complaint, complainant, a Charge Nurse, alleged that he was
subjected to discrimination on the basis of sex (male) when on October 3,
2003, his request to be placed on a compressed work schedule was denied.
In dismissing the complaint, the agency stated that although the event
occurred on October 3, 2003, complainant did not contact an EEO Counselor
until February 26, 2004, which was beyond the 45-day time frame for timely
EEO Counselor contact. The agency noted that although complainant had
spoken with an EEO Manager on or about October 31, 2003, complainant did
not exhibit an intent to pursue the EEO process because he came to the
EEO office only for information regarding the EEO complaint process and
to learn of other options available to him to get his issues addressed.
On appeal, complainant re-asserts that the time period should be equitably
tolled because when he spoke with the EEO Manager about his complaint,
she indicated that complainant should resolve the matter by requesting a
meeting with his supervisory chain of command. Complainant argues that
he did so and when the outcome was not productive, he again contacted
the EEO office.
The record contains a Report of Contact (Report) from the EEO Manager
which reflects that complainant came to the EEO office on October 30,
2003, for information regarding the EEO process and after being advised
about the length of time involved in the EEO process, complainant informed
the EEO Manager that he did not want to file a complaint because he wanted
his complaint resolved as soon as possible. The Report also reflects that
complainant alleged that he requested a compressed workweek to attend
school and that when he submitted the forms, his supervisor returned
them to him twice and denied his request. The Report also indicates that
complainant alleged that he was asked to document how it would benefit the
agency for him to attend school and other nurses were allowed to attend
school without a hassle. The Report reflects that complainant was asked
by the EEO Manager whether he had talked to his supervisor's supervisor
(Person A) to convey his concerns and complainant stated that he had
asked for a meeting but that he did not receive a response. The Report
reflects further that the EEO Manager suggested that complainant put his
request for a meeting in writing. The EEO Manager was sent a copy of
complainant's request for the meeting. The Report also reflects that
after some time passed, complainant contacted the EEO Manager again to
inform her that he was not granted a meeting and that the EEO Manager
told him to resubmit his complaint.
The record also contains a Counselor's Report which reveals that
complainant contacted the EEO office again on February 26, 2004.
The Counselor's Report also reveals that complainant alleged that he
was denied a compressed work schedule on February 10, 2004.
Also contained in the record is a February 19, 2004 electronic mail
message from complainant to Person A requesting a meeting regarding
complainant's performance and "unit level" issues. The message also
reflects that complainant had requested a meeting on October 31, 2003.
A copy of the February 19, 2004 message was sent to the EEO Manager. The
record contains an October 31, 2003 electronic message from complainant to
the EEO Manager with an attachment relating to a meeting with Person A.
In a February 20, 2004 electronic message from Person A to complainant,
Person A stated that she had been of the understanding that complainant
and his supervisor were meeting regularly since his first request in the
hope that the issues would be resolved but because that was not the case,
Person A would set up a meeting.
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 also provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2). The time limits are also subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. � 1614.604(c).
Upon review, the Commission finds that the agency's decision was proper.
We find that complainant had a reasonable suspicion of discrimination
in October 2003, when he was denied a compressed work schedule. We find
further that although complainant contacted the EEO office on October 30,
2003, and spoke with the EEO Manager, an individual logically connected
to the EEO process, he did not exhibit an intent to pursue the EEO
complaint process. The Commission has held that in order to establish
EEO Counselor contact, an individual must contact an agency official
logically connected to the EEO process and exhibit an intent to begin
the EEO process. See Allen v. United States Postal Service, EEOC Request
No. 05950933 (July 9, 1996). The Commission finds that complainant was
instead pursuing informal efforts to resolve his complaint and that he did
not contact the EEO Manager again until February 2004, to begin the EEO
process and this was beyond the requisite time period. The Commission has
consistently held that utilization of internal agency procedures, union
grievances, and other remedial processes does not toll the time limit
for contacting an EEO Counselor. See Hosford v. Department of Veterans
Affairs, EEOC Request No. 05890038 (June 9, 1989). The Commission is
also not persuaded that the agency discouraged complainant from engaging
in the EEO process or otherwise misled complainant into pursuing informal
efforts to resolve his complaint, such that the time limitation period
should be equitably tolled.
Accordingly, the agency's decision 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
October 28, 2004
__________________
Date