Doris Calvert, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 3, 2000
01995720 (E.E.O.C. Mar. 3, 2000)

01995720

03-03-2000

Doris Calvert, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Doris Calvert, )

Complainant, )

)

v. ) Appeal No. 01995720

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On July 7, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on June 7, 1999,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> In her complaint, complainant alleged that

she was subjected to discrimination on the basis of her race (African

American) when:

in May 1996, she turned in documentation of her Associate Degree in

Applied Science but was not boarded in order to be converted to a

Registered Nurse position;

in May 1996, she was not promoted from her position of Licensed Practical

Nurse (LPN), GS-5 to LPN, GS-6, based on the completion of her Associate

Degree in Applied Science; and,<2>

in July 1996, her tour of duty was changed from days to a straight PM

shift.

The agency dismissed Claim Nos. 1 and 2 pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(b)), noting that complainant did not timely

initiate EEO counseling. The agency dismissed Claim No. 3 pursuant to

29 C.F.R. � 1614.107(b), noting that complainant failed to raise it with

the EEO Counselor and that it was not like or related to any allegation

brought to the counselor's attention.

ANALYSIS AND FINDINGS

EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 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). "The time period is triggered as soon as a complainant suspects

discrimination and the complainant may not wait until all supporting

facts have become apparent." Whalen v. Department of Justice, EEOC

Request No. 05960147 (September 18, 1997).

In the case at hand, complainant submitted her documentation and requested

a promotion to a LPN, GS-6 position in October 1996, at the latest.

Although the EEO Counselor's report does not specify when contact was

initiated, a request for further information was sent out on December

10, 1998 and the complaint was filed on January 21, 1999. The FAD

indicated that complainant initiated contact with the EEO counselor on

December 10, 1998. Complainant did not refute this argument and did

not offer any evidence of earlier contact. Accordingly, we find that

complainant initiated EEO contact more than two years after she turned

in her documentation and requested a promotion.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits for EEO Counselor contact 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. Here,

in answer to the EEO Counselor's request for an explanation of her delay

in initiating contact, complainant noted that she was told repeatedly

by the agency that her conversion to a GS-6 would happen soon and that

when she attempted to find out more, she was not given a straight answer

and her phone calls were not returned. In essence, complainant appears

to be arguing that she did not suspect discrimination at first because

the agency told her that her promotion was forthcoming. While we find

that this explanation may justify a short delay in initiating contact,

it is insufficient to justify an extension of the applicable time limit

for almost two years. See Baldwin County Welcome Center v. Brown, 466

U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently

cannot invoke equitable principles to excuse lack of diligence"); Rys

v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor

in equity a Title VII plaintiff must have diligently pursued her claim").

We find that complainant should have suspected discrimination and

initiated EEO contact at some point significantly prior to December 1998.

Accordingly, the agency's dismissal of Claim Nos. 1 and 2 is AFFIRMED.

Turning to Claim No. 3, EEOC Regulation 29 C.F.R. � 1614.107(b), states

in pertinent part, that an agency shall dismiss a complaint or portion

thereof which raises a matter that has not been brought to the attention

of an EEO Counselor, and is not like or related to a matter on which

the complainant has received counseling. The EEOC Regulations further

direct an EEO Counselor to inform a complainant that only matters raised

during pre-complaint counseling, or matters which are like or related

thereto, may be raised in a subsequent complaint filed with the agency. 29

C.F.R. � 1614.105(b). In determining if a later allegation or complaint

is "like or related" to the original complaint, the question arises as

to whether the later allegation or complaint adds to or clarifies the

original complaint and could have reasonably been expected to grow out

of the original complaint during the investigation. See Scher v. United

States Postal Service, EEOC Request No. 05940702 (May 30, 1995). Here,

complainant's claim that her duty hours were changed was not raised during

counseling and does not add to or clarify the promotion issues discussed

with the counselor. Therefore, the agency's decision to dismiss Claim

No. 3 is AFFIRMED.

Accordingly, the agency's decision to dismiss complainant's complainant

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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:

03/03/00

DATE Carlton 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 Equal Employment Assistant

1 On 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.

2 Although the EEO Counselor's report and the FAD list May 1996 as

the date of occurrence for Claim Nos. 1 and 2, October 1996 is the date

given in the formal complaint.