0120092579
09-01-2009
Adrienne Curry, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Adrienne Curry,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092579
Agency No. 2001-0521-2008104676
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated March 11, 2009, dismissing her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
Beginning in November 1985, complainant worked as a Program Support
Clerk at the VA Medical center in Birmingham, Alabama. In 1996, she
filed an OWCP claim for depressive reaction and began receiving payments
the following year. The agency, in 1999, sent complainant a job offer.
According to the agency, however, complainant never accepted or rejected
the offer. The most recent activity noted by the agency's Human Resources
department, was that in September 2006 the Department of Labor proposed
reducing her compensation. The Department terminated her compensation,
but following an appeal by complainant, it was reinstated in January
2008.
Believing that she was subjected to discrimination when the agency would
not allow her to return to work, complainant contacted the EEO office on
September 18, 2008. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint
based on disability and reprisal. The agency framed the claims as
follows:
(1) From 1996 to September 15, 2008, and in October 2008, the complainant
was not allowed to return to work, and/or provided assistance regarding
the procedure to do so; and,
(2) From August 2005 and on-going, the agency hired a Private Investigator
that follows the complainant everywhere.
In its decision, the agency dismissed both claims for failure to
state a claim. With respect to claim (1), the agency reasoned that
complainant's desire to return to work while under the OWCP process was
outside of the agency's jurisdiction. The agency found claim (2) to be
"an isolated incident" that did not create a harm or loss to a term,
condition or privilege of complainant's employment. Additionally, claim
(2) was dismissed for untimely counselor contact. Complainant's EEO
contact, stated the agency, was three years after the alleged event.
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant contends she has not been allowed to return to work
since 1996. There is no indication in the record, however, that she
has attempted to obtain a position with the agency. Consequently,
the Commission agrees with the agency that claim (1) fails to state
a claim.
Claim (2)
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.
In her formal complaint, complainant asserts that since August 2005 the
agency has hired private investigators to follow her. Complainant's
September 18, 2008 contact was years after the alleged events began, and
clearly beyond the forty-five day time limitation. While complainant
appears to argue on appeal that she was unaware of the time limit,
arguing that she has not been inside the facility "in years" and has
never filed an EEO complaint, the Commission finds her statement to be
inconsistent and unpersuasive. We note that a few paragraphs later,
in the same statement, complainant asserts that she has previously filed
EEO complaints.
CONCLUSION
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
September 1, 2009
__________________
Date
2
0120092579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092579