Clifton E. McKinnis, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 1, 2000
01A04747 (E.E.O.C. Nov. 1, 2000)

01A04747

11-01-2000

Clifton E. McKinnis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Clifton E. McKinnis v. Veterans Affairs

01A04747

November 1, 2000

.

Clifton E. McKinnis,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04747

Agency No. 200K-1224

DECISION

On June 23, 2000, complainant filed a timely appeal with this Commission

from an agency 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 the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The Commission accepts the appeal in accordance with 29

C.F.R. �1614.405.

On February 23, 2000, complainant contacted the EEO office regarding

claims of discrimination based on race and age. Informal efforts to

resolve complainant's concerns were unsuccessful. Subsequently, on

April 4, 2000, complainant filed a formal complaint. The agency framed

the claims as follows:

Working Conditions

On December 7, 1999, management's failure to provide a safe working

environment resulted in complainant's exposure to ethylene oxide gas

(ETO); and,

(2) Following complainant's exposure to ETO on December 7, 1999,

agency officials (e.g., medical staff, industrial hygienist and safety

officer) failed to follow proper medical procedures to determine his

level of exposure.

The agency issued a decision, on May 26, 2000, dismissing the complaint

for untimely EEO Counselor contact. Specifically, the agency determined

that complainant's February 23, 2000 contact was 78 days after the alleged

December 7, 1999 incident and therefore beyond the time limitation.

The agency noted that complainant had attended an EEO training session,

wherein the 45-day time limitation was discussed. Further, when asked

why he delayed in reporting the incident, complainant explained that

his supervisor was trying to obtain information and continuation of

pay for him. Complainant also asserted that, with respect to claim

(2), he was not aware of the tests for determining exposure levels.

The agency concluded, however, that complainant was in possession of

such information as early as December 8, 1999. Claim (2) was also

dismissed for failure to state a claim. According to the agency,

other than complainant's disagreement over the ETO findings and method

of treatment, there was no indication that complainant suffered a harm

or loss for which there is a remedy.

Complainant makes no new contentions on appeal.

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.

Regarding claim (1), the record reflects that complainant's purported

exposure to ETO occurred on December 7, 1999. Complainant did not contact

the EEO office until February 23, 2000, which is beyond the 45-day time

limitation with regard to the December 7, 1999 ETO exposure incident.

When asked why he waited to contact the EEO Counselor, complainant stated

that his supervisor and the Acting Chief of EMS Service �were handling

the matter on my behalf in trying to obtain information and Continuation

of Pay (COP).� The Commission has long held that internal appeals or

informal efforts to challenge an agency's adverse action do not toll

the running of the time limit to contact an EEO counselor. See Hosford

v. Department of Veterans Affairs, EEOC Request No. 05890038(June 9,

1989); Williams v. United States Postal Service, EEOC Request No. 05910291

(April 25, 1991). Accordingly, complainant's attempt to resolve his

concerns through his supervisor is not sufficient to toll the 45-day

time limit.

Complainant asserted in claim (2) that he was not aware of the testing

procedures that can determine the level of exposure to ETO until he read

the public health information on February 22, 2000. The agency argues

that complainant was provided with the cited health information on the day

he was treated for the ETO exposure, citing the �December 7, 1999 11:59"

print date included on the public health statement. Moreover, the agency

provided copies of e-mails, dated early January 2000, wherein complainant

disagreed with the ETO monitoring system. Complainant does not challenge

the agency's assertions. Therefore, we find that complainant should

have reasonably suspected discrimination at the time he was exposed to

ETO and treated.

Because of our disposition we do not consider whether claim (2) was

properly dismissed for failure to state a claim.

Accordingly, the agency's decision dismissing both claims raised in the

instant complaint for untimely EEO Counselor contact was proper and 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

November 1, 2000

__________________

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.