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.