0120083420
01-08-2009
Carmen Hopkins, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Carmen Hopkins,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083420
Agency No. 2004-0659-2007102355
Hearing No. 430-2008-00048X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's final order dated June
25, 2008, 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. In her complaint, complainant alleged
that she was subjected to discrimination based on her race (Caucasian)
and reprisal for prior protected EEO activity when she was notified on
March 6, 2007, that the nurse professional standards board decided she
did not meet the criteria to be promoted to the Nurse III grade.
Following an investigation, complainant requested a hearing. An EEOC
Administrative Judge (AJ) then issued a decision dismissing the complaint
on the grounds that complainant did not contact an EEO counselor
until April 23, 2007, beyond the 45 calendar day time limit to do so.
The decision reasoned that complainant's contact was untimely, and she
should have reasonably suspected discrimination when she learned of
her non-promotion. The agency issued a final order implementing the
AJ's decision.
On appeal, complainant argues that she did not reasonably suspect
discrimination until March 13, 2007, when she received the basis for the
decision by the nurse professional standards board. She argues that on
March 2, 2007, she received the letter found at Investigative File, C-4.
This letter states that the board did not recommend complainant for
promotion because she did not meet the criteria for performance in
the qualification standards which were listed as: practice, quality of
care, performance, education/career development, collegiality, ethics,
collaboration, research, and resource utilization.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). The time limit to seek EEO counseling shall be extended
when an individual shows he did not know and reasonably should not
have known that the discriminatory action or personnel action occurred.
29 C.F.R. � 1614.105(a)(2). 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.
Complainant is a registered nurse (RN), level II. In her affidavit, she
stated that her duties addressed the Nurse, level III standards, and her
proficiency reports for 2006 and 2007 show she undoubtedly met all nine
qualification standards. The record shows that by letter dated December
22, 2006, complainant was notified that the nurse professional standards
board determined that she did not meet the criteria for promotion to
level III because she did not demonstrate programmatic leadership with
documented outcomes in practice, ethics, collaboration, research and
resource utilization. Based on the above, we find complainant had a
reasonable suspicion of discrimination when she was notified that the
agency decided not to promote her.
Accordingly, the final order is 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
January 8, 2009
__________________
Date
2
0120083420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120083420