01a32769_r
06-04-2004
Alice Ritchie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alice Ritchie v. Department of Veterans Affairs
01A32769
June 4, 2004
.
Alice Ritchie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32769
Agency No. 200R-0632-2003100775
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 11, 2003, dismissing her 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.
Believing that she was the victim of discrimination in reprisal for prior
EEO activity, complainant contacted the EEO office on November 13, 2002.
Informal efforts to resolve her concerns were unsuccessful.
On January 8, 2003, complainant filed a formal complaint.
In its final decision dated March 11, 2003, the agency determined that
the instant complaint was comprised of seven claims, that were identified
in the following fashion:
(1) on January 27, 2000, complainant received a memorandum regarding the
decision of the Nurse Professional Standards Board (NPSB) on her appeal
filed in July 1999 of the board action of May 7, 1999;
(2) on or around February 4, 2000, the Chief Nurse refused to promote
complainant to Nurse III because complainant was allegedly untimely with
her appeal to the NPSB;
(3) on August 1, 2001, complainant received a July 11, 2001 letter
regarding the May 2000 to May 2001 proficiency rating period that
erroneously stated that complainant had no non-nursing degrees;
(4) on or around May 8, 2002, the NPSB applied new qualification standards
to complainant's 2002 proficiency review;
(5) on June 5, 2002, complainant received a memorandum indicating that
her proficiency review was done at the Northport VAMC and not by VISN
III as indicated in a January 30, 2002 letter from the Chief Nurse;
(6) on September 18, 2002, complainant received an August 29, 2002 letter
from the Chief Nurse stating that complainant had declined to have her
2002 proficiency reviewed by VISN III and that the Newport NPSB would
not review historical data; and
(7) on December 20, 2002, complainant discovered that her board actions
still displayed erroneous information as stated in her EEO complaint that
is currently at hearing (ORM Case No. 200R-0632-2001103371 or 200H-1719).
The agency dismissed claims (1) through (6) for untimely Counselor
contact. The agency noted that when complainant was asked why she did not
contact the EEO office prior to November 13, 2002, complainant stated that
she discovered missing and altered documents in her Official Personnel
Folder (OPF) after the expiration of the 45-day limitation period.
The agency determined that complainant was aware of the erroneous and/or
missing documents at the time of the events in question. The agency
concluded that complainant attended training which informed her of the
EEO time frames; and that she was a trained EEO Counselor. The agency
dismissed claim (7) for stating same claim as that raised in a prior
complaint. Specifically, the agency noted that complainant addressed
the same issue in Case No. 200H-1719. In addition, the agency found
no continuing violation, determining that none of complainant's claims
(claims (1) through (6)) were timely and that they were not interrelated.
On appeal, complainant through her attorney, states that the
agency misconstrued the matters raised in the instant complaint
when it determined that complainant claimed that she was subjected
to disparate treatment with regard to the processing of NPSB actions.
Complainant's attorney argues that the main issue in the instant complaint
is complainant's claim that on June 5, 2002, she was notified that the
Nursing Board failed to promote her to Nurse Grade III.<1> Regarding
the matters identified by the agency as claims (1) - (7), identified
above, complainant's attorney argues that these matters were intended
to �support and not supersede� a claim regarding the promotion denial
in June 2002.
With respect to the agency's assertion that complainant was trained as
an EEO Counselor, complainant's attorney states "even if this were true,
she is not an attorney or versed in the legal technicalities underlying
this specialized area of law." Further, complainant's attorney states
that although complainant did not meet the 45-day limitation period,
that her complaint consists of a "series of events which should be viewed
as a continuum and ongoing in nature."
In response, the agency argues that complainant first initiated EEO
Counselor contact on July 8, 2002, regarding not being promoted to Nurse
III grade in May 2002. The agency stated that the EEO Counselor issued
a Notice of Right to File a Discrimination Complaint to complainant and
her representative on August 23, 2002, but that complainant did not file
a formal complaint on the issue of the promotion denial. The agency
argues that complainant, instead, again contacted an EEO Counselor
regarding claims of discrimination on November 13, 2002, alleging various
matters that caused her not to be promoted to the Nurse III grade from May
1993 to May 29, 2002, and started the EEO counseling process anew.
The record in this case contains a copy of the EEO Counselor's Report
following complainant's initiation of EEO Counselor contact on November
13, 2002. Therein, the EEO Counselor stated that complainant claimed
that she was undergoing EEO counseling about �the timeliness of board
actions and the discrepancies in how information is processed and how the
erroneous information has been used to deny [complainant] a promotion
to the Registered Nurse, Level III.� The EEO Counselor further stated
that complainant stated that �this complaint is not about the failure
to promote because she has raised that issue in prior complaints.�
Claims (1) - (6)
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that complainant initiated EEO Counselor contact on
July 8, 2002, regarding a promotion denial in late May 2002. However, the
record reflects that complainant abandoned this claim by not subsequently
filing a formal complaint on this matter. Complainant again contacted
an EEO Counselor on November 13, 2002, and the EEO Counselor's Report,
as well as the instant formal complaint, do not address the issue of
promotion denial. Rather, the complaint reflects that complainant
identified the matters raised in claims (1) - (7).
Complainant's initial EEO Counselor contact, on November 13, 2002,
is beyond the forty-five (45) day limitation period regarding the
matters identified in claims (1) - (6). The Commission determines that
complainant should have reasonably suspected discrimination well prior
to her initial EEO Counselor contact in November 2002. In addition,
complainant claims that her complaint is part of a continuing violation.
The Commission determines that a continuing violation analysis is not
necessary as there are no viable claims that occurred within forty-five
days of complainant's initial EEO Counselor contact.
Claim (7)
Complainant claimed that on December 20, 2002, she discovered that her
board actions still displayed erroneous information as stated in a prior
EEO complaint that she identified in her formal complaint as �Complaint
200#-0632-2001.� We find that complainant's claim is an elaboration of
the matter that complainant raised in a prior complaint and was properly
dismissed by the agency pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is hereby 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
June 4, 2004
__________________
Date
1While complainant's attorney refers to
a promotion denial on June 5, 2002, the Commission notes that other
evidence of record reflects that the denial occurred in late May 2002.