David E. Clement, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01995596 (E.E.O.C. Apr. 24, 2000)

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.