0120114000
02-07-2012
Barbara E. Smyth, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara E. Smyth,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114000
Agency No. 200105572011103768
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 9, 2011, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Dietitian at the Agency’s Carl Vinson Medical Center in Dublin,
Georgia.
In June 2011, Complainant initiated contact with an EEO Counselor, and on
July 19, 2011, filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of age (57). Complainant claimed
that in December 2003, the Agency made a decision to convert her and
other dietitians to the Hybrid Title 38 pay scale. The pay conversion
did not actually go into effect until 2006, so Complainant alleges she
is entitled to retroactive pay for the period of 2003 – 2006, but the
Agency has failed to pay her.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed. Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
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. Dep’t of the Navy,
EEOC Request No. 05970852 (Feb. 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 record discloses that the alleged discriminatory event occurred
between 2003 and 2006, but Complainant did not initiate contact with an
EEO Counselor until June 17, 2011, which is well beyond the forty-five
(45) day limitation period. While Complainant has contended that she
still has not received the back pay she believes she is entitled to for
the 2003-2006 period, she should have challenged this action long before
2011. The Commission has consistently held that a complainant must act
with due diligence in the pursuit of a claim or the doctrine of laches
may apply. See O’Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches
is an equitable remedy under which an individual's failure to pursue
diligently her course of action could bar her claim. Complainant waited
over five years before she finally contacted an EEO Counselor. On appeal,
Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 7, 2012
__________________
Date
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0120114000
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114000