Adrienne Curry, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 1, 2009
0120092579 (E.E.O.C. Sep. 1, 2009)

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