01995596
04-24-2000
David E. Clement, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David E. Clement, )
Complainant, )
)
v. )
) Appeal No. 01995596
Togo D. West, Jr., ) Agency No. 99-0799
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 28, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dismissing his complaint for untimely
counselor contact.<1> The appeal is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
On February 5, 1999, complainant contacted an EEO counselor alleging
that he was discriminated against on the bases of sex (male) and age
(DOB: 3/8/48) when on July 5, 1998, he was demoted from LPN to Nursing
Assistant. Complainant filed a formal complaint on April 16, 1999.
The agency issued a FAD dismissing the complaint on the grounds of
untimely counselor contact.
Complainant maintained that he was unaware that his demotion may
have been motivated by discrimination until January 13, 1999, when he
obtained a document from the agency. He also alleged that B-1, the EEO
and Affirmative Employment Program Specialist at his facility, somehow
misled him into believing that he did not have a valid EEO complaint.
On appeal, complainant admitted that he contacted an EEO counselor after
the time limitation period; however, he maintained that �I feel that
this case should be evaluated on its merits with justice in mind rather
than time.�
The record indicates that, on July 5, 1998, complainant spoke to B-1
about his concerns. According to B-1, she advised complainant that he
could pursue the matter either through the negotiated grievance or the
EEO process. She stated that she explained the entire EEO process to
complainant, including the time limitation period for seeking counseling.
Finally, B-1 stated that complainant never indicated that he felt the
action taken against him was the result of discrimination, nor did he
express a desire to file an EEO complaint. Subsequently, complainant
filed a grievance against the agency. Afterward, he grew dissatisfied
because of the amount time the union was taking to resolve the matter.
Complainant, in a statement contained in the record, stated �I was
always under the assumption that I would be treated in a fair and just
manner working through the union. Time revealed this to be untrue.�
According to complainant, a national union representative advised
him, in December 1999, that he should have gone with the EEO process.
Complainant maintained, however, that �further delay resulted in getting
information gathered and arranged to submitted to EEO. The last piece
of information gathered was not found until 01/13/99 . . . .�
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified as 29 C.F.R. � 1614.105(a)(1)) requires
that complaints of discrimination should be brought to the attention
of an 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 period is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent. Finally,
our regulations provide that the agency or the Commission shall extend
the time period when the individual shows that he was not notified of
the time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
Based on the above facts, we find that complainant sought EEO counseling
in an untimely manner. Complainant's July 5, 1998 conversation with B-1
is indicative of the fact that he at least suspected discrimination at
the time of his demotion. B-1 provided him with information on both the
EEO process and on the negotiated grievance process. Complainant chose to
pursue the grievance process. We note, however, that filing a grievance
does not toll the time limitation period for contacting an EEO counselor.
Walczak v. United States Postal Service, EEOC Request No. 05891070
(January 19, 1990). Additionally, we note that even after the national
union representative advised complainant, in December 1999, that he
should have chosen the EEO process, complainant waited until February
9, 1999, before contacting a counselor. According to complainant,
he waited until he obtained additional information; however, as noted
above, complainant's obligation to contact a counselor arose at the
time he reasonably suspected discrimination, not when he obtained all
the information that would support his claim.
The agency's decision to dismiss complainant's complaint for untimely
counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
04-24-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.