01992691
10-15-1999
Dawn Boutte, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Dawn Boutte, )
Appellant, )
)
v. ) Appeal No. 01992691
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's January 20, 1999 decision
dismissing appellant's complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 29 C.F.R. �1614.107(b).
The record shows that appellant sought EEO counseling on November 25,
1998, alleging that she had been discriminated against on the basis of
age when:
(1) she did not receive grade and pay retention when she was given
a temporary appointment to the position of Office Automation Clerk,
GS-0326-04, Step 1, effective May 9, 1994; and
(2) she was reassigned as a File Clerk, GS-0305-04, Step 1, in Radiology
Service at the West Side VA, effective May 14, 1995.
The EEO Counselor's Report reflects that, in order to explain her delay
in seeking EEO counseling, appellant stated that she had been involved
in a grievance process on these issues.
On December 29, 1998, appellant filed a formal complaint of discrimination
concerning the two matters for which she underwent EEO counseling.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact. The agency noted that appellant
had received EEO training on July 25, 1996. The agency also noted that
�proper posting of Equal Employment Opportunity Bulletins and complaint
processing was being accomplished� at appellant's work facility.
On appeal, appellant argues that the delay in contacting an EEO Counselor
was due to her inability to obtain a copy of regulations needed in
order to substantiate her entitlement to pay retention and back pay.
Appellant also noted that she unsuccessfully pursued the grievance
process regarding the matters raised in the instant complaint.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The Commission determines that appellant's initial EEO Counselor contact
on November 25, 1998, occurred well beyond the forty-five day time limit
provided by EEOC Regulations. The Commission has held that internal
efforts or appeals of an agency's action and/or the filing of a grievance
do not toll the running of the time limit for contacting an EEO Counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Appellant has failed to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss appellant's complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations