01A04228
02-23-2001
Alonzo Elliott, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alonzo Elliott v. Veterans Affairs
01A04228
February 23, 2001
.
Alonzo Elliott,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04228
Agency No. 200I-372
DECISION
Complainant filed an appeal with this Commission from an agency's decision
pertaining to his 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
On October 12, 1999, complainant contacted the EEO office regarding
claims of discrimination based on race and disability. Informal efforts
to resolve complainant's concerns were unsuccessful. On December 1,
1999, complainant filed a formal complaint. Based upon the information
provided by complainant on the complaint form, the agency framed five
claims as follows:
Removal - on or about September 16, 1999, complainant received a proposed
removal letter from the Chief of Police & Security. The specific charge
was �Not being ready, willing or able to work as a Police Officer;�
Training - Complainant has not received any adequate training, because
Chief of Police and Security has refused to give him any training since
January 1, 1994;
Working Condition - On September 16, 1998, while performing the duties
of Dispatcher complainant fell off a chair injuring his back; and
Other - Violation of Title I on January 1, 1994.
On April 11, 2000, the agency issued a decision dismissing the complaint
for untimely EEO Counselor contact and alleging that a proposal to take a
personnel action is discriminatory. Specifically, the agency determined
that complainant's EEO Counselor contact was untimely with respect to
claims B, C, and D. Moreover, the agency noted that since almost two
years had passed since the last incident, the doctrine of laches applied.
Regarding claim A, the agency noted that it could dismiss a claim
concerning a proposal to take a personnel action. According to the
agency, on March 23, 2000, a letter rescinding the proposed removal was
issued. However, the agency further determined that because complainant
failed to show how he suffered a harm or loss with respect to a term,
condition or privilege of employment, the agency concluded that claim
A failed to state a claim.
On appeal, complainant does not address the grounds for dismissal.
Instead, complainant contends that in a Report of Contact dated March 28,
2000, he was �unfairly released.� Further, he argues that in October
1999, the Human Resources Representative and Chief of Police tried to
force him to take a lower grade and pay position.�
In response, the agency states that complainant continues to be employed
by the agency. In support of this assertion, the agency submits a
statement prepared by a Human Resources official on June 30, 2000.
Therein, the Human Resources official states that based upon his
personal knowledge and agency employment records, complainant is
presently employed at the agency's Miami VA Medical Center. Further,
the agency noted that complainant failed to provide an explanation for
his untimely Counselor contact. According to the agency, the complaint
was properly dismissed for challenging a proposal to take a personnel
action (claim A) and untimely EEO Counselor contact (claims B, C, and D).
Claim A
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory.
In claim A, complainant alleges he was discriminated against when on
September 16, 1999, he received a proposed removal letter from the Chief
of Police, for �Not being ready, willing or able to return to work as
a Police Officer.� It appears, however, that the proposed action was
never implemented, and therefore we find that the claim was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(5). In fact, the record
contains a memo dated March 23, 2000, stating that the proposed removal
is rescinded. Accordingly, the agency's decision to dismiss claim A
was proper and is AFFIRMED.
We note that on appeal, complainant contends that in March 2000, he was
�laid off without pay.� Complainant is advised that if he wishes to
pursue this matter through the EEO complaint process, he is advised to
contact an EEO Counselor thereon.
Claims B, C, and D
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 alleged incidents occurred in January 1994 (claims B and C) and
September 16, 1998 (claim D), thereby making complainant's October 12,
1999 EEO Counselor contact well beyond the forty-five day time limitation.
Complainant has failed to provide sufficient reason for tolling or
waiving the time limit. Therefore, we find that the agency properly
dismissed claims B, C, and D. Accordingly, the agency's decision to
dismiss claims B - D is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.