01A62357
07-06-2006
Deborah A. Davis-Johnson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Deborah A. Davis-Johnson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62357
Agency No. 2001-0508-2005103878
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 30, 2006, dismissing her formal 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.
On September 14, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On October 29, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (African-American), sex
(female), and age (D.O.B. 8/6/47).
On January 30, 2006, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claims:
a. on July 21, 2005, complainant was issued a written counseling for
"unprofessional and discourteous" behavior toward her supervisor;
b. on Fridays, since December 17, 2000, she was assigned to cover clinics
of the social workers who were on compressed work schedule;
c. she was not notified of an opening for the position of Social Worker,
GS-185-11, under Vacancy Announcement No. ATL-05-01-024JW (closing date
2/15/05);
d. she was subjected to harassment in one or more of the following
incidents:
1. since December 17, 2000, her supervisor made "inappropriate comments
towards her;
2. her supervisor made "sarcastic remarks" and informed her that "he
was the supervisor and what he says goes;"
3. her supervisor "often" threatened to reassign her to the Nursing
Home Care Unit (NHCU);
4. her supervisor has "trouble dealing with African-American females
who are assertive;"
5. her supervisor "often insulted" her when she refused to sign for
coverage;
6. her supervisor "demands to be placed on a pedestal but treats his
workers (90% of whom are females) like dirt;"
7. her supervisor "lacks compassion and understanding" of the needs of
his employees;
8. her supervisor is "often argumentative and cuts down opportunities
to improve" her department;
9. her supervisor told her in front of a union representative that she
would not be promoted unless she obtained "LCSW licensure;" and
10. her supervisor was "non-supportive" of her endeavor to promote
"a cost-effective measure designed to save money for" the agency while
providing "preventative information to veterans who were facing some
type of loss of limb."
e. female social workers were being paid less than male social workers
(Equal Pay) (amended claim);
f. her supervisor did not provide her with "an appropriate evaluation
based upon performance measures, productivity, and accountability
(amended claim);" and
g. her supervisor "forced" her to work in an unsafe office despite her
request to be moved to another office (amended claim).
First, the agency dismissed complainant's amended claims (claims (e) -
(g)), finding that complainant did not undergo EEO counseling regarding
these claims and that they were not like or related to the matters for
which complainant underwent EEO counseling.
The agency next dismissed claims (a) - (c) pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's initial EEO contact occurred on
September 14, 2005, which it found to be beyond the 45-day limitation
period. The agency further determined that complainant had or should
have had reasonable suspicion of unlawful employment discrimination
prior to September 14, 2005. The agency determined that complainant
was aware of the 45-day limitation period because she attended two EEO
training sessions on May 16, 2001 and June 14, 2002. The agency stated
that when inquired by the EEO Counselor concerning her untimely EEO
Counselor contact, complainant stated that she "decided to file after
many incidents occurred." The agency determined that according to the
EEO Counselor, complainant stated that she "tried to work things out
with management before contacting our office." Furthermore, the agency
determined that EEO posters addressing the 45-day requisite time period
were on display in complainant's workplace.
Finally, regarding claim (d), the agency dismissed this claim pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding that
complainant was not aggrieved regarding the matters identified therein.
Claims (e) - (g)
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency
shall dismiss a claim that addresses a matter that has not been brought
to the attention of an EEO Counselor and that is not like or related to
a matter that has been brought to the attention of an EEO Counselor
The Commission agrees with the agency's dismissal of the additional
claims (claims e - g) raised in the instant complaint. Complainant did
not undergo EEO counseling regarding these claims and they are not like
or related to matters for which complainant underwent EEO counseling.
Claims (a) - (c)
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.
The Commission determines that the agency properly dismissed claims (a)
- (c) on the grounds of untimely EEO Counselor contact. The alleged
discriminatory events occurred on December 17, 2000, July 21, 2005 and
February 15, 2005, but complainant did not initiate contact with an EEO
Counselor until September 14, 2005, which was beyond the forty-five (45)
day limitation period.
Moreover, the record contains a copy of the EEO Manager's memorandum
dated June 4, 2004. Therein, the EEO Manager stated that EEO posters
outlining the 45-day requisite time period were on displayed on bulletin
boards in various areas frequented by agency employees. In support of
her assertion, the EEO Manager submitted a picture of the EEO poster
and the Office of Resolution Management Discrimination Process poster
outlining the 45-day requisite time period.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 0590065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time of the alleged discriminatory event, and that she should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation.
Claim (d)
The alleged incidents identified in this claim do not address a personal
loss or harm regarding a term, condition or privilege of complainant's
employment as a result of the alleged incidents, and are not of a
type reasonably likely to deter complainant or others from engaging
in protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, a review of
the record reflects that the matters in question are insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Therefore, we find that
the agency properly dismissed claim (d) for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing the instant complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 6, 2006
__________________
Date
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01A62357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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