0120093044
11-17-2009
Ethel M. Burrell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ethel M. Burrell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093044
Agency No. 2001-0619-2009100173
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 20, 2009, dismissing a 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 October 10, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On November 15, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination on
the bases of race and age when she was denied an opportunity to compete
for the position of Pharmacy Clinical Coordinator/Supervisor, GS-13.
In its April 20, 2009 final decision, the agency dismissed complainant's
complaint on the grounds of untimely EEO Counselor contact, pursuant to
29 C.F.R. � 1614.107(a)(2). The agency determined that complainant's
initial EEO contact occurred on October 10, 2008, which it found to
be well beyond the 45-day limitation period. The agency acknowledged
that complainant claimed that she did not became aware that the subject
Pharmacy Clinical Coordinator/Supervisor position was no longer vacant
until September 18, 2008, making her October 10, 2008 EEO contact timely.
However, the agency nevertheless determined that the record supported
a finding that complainant became aware that the subject position was
filled well prior to September 18, 2008. The agency points to the fact
that during EEO counseling complainant conceded that in January 2008,
after returning to work from leave, she was advised during a morning
Pharmacy Staff meeting that a named employee had been selected for
the Clinical Coordinator supervisor position and, in February 2008,
she started receiving instructions from that individual. Despite these
events, the agency contended that complainant did not seek EEO counseling
until nearly eight months later in October 2008.
Moreover, the agency determined that complainant was aware of the 45-day
limitation period because she attended the following training which
including the EEO complaint processing time limits: Sexual Harassment
Refresher Training on November 29, 2000; Prevention of Sexual Harassment
Training on December 19 and 28, 2004, and August 25, 2006; and the No Fear
Act Training on September 12, 2005, August 25, 2006 and June 27, 2007.
The agency further determined that EEO posters addressing the 45-day
requisite time period were on display in complainant's workplace during
the time.
On appeal, complainant contends she was not aware of any documentation
indicating she began receiving instructions from the selectee for the
subject position in February 2008. Complainant further states that
she does not recall sending an email to the selectee asking her if she
was the Clinical Coordinator in February 2008.
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.
In its final decision, the agency determined that complainant had or
should have had reasonable suspicion of unlawful employment discrimination
well prior to her October 10, 2008 EEO Counselor contact. Further, the
agency noted that complainant was asked to provide an explanation for
her untimely EEO Counselor contact. The agency stated that the record
reflects that during a February 24, 2009 telephone conversation with the
EEO counselor, complainant stated that she did not initiate counseling
in February 2008 because it was "just a rumor" that the selectee
was the Pharmacy Clinical Coordinator/Supervisor. The agency stated,
however, during a follow-up conversation with counselor on February 25,
2009, complainant stated that around the latter part of January 2008,
complainant was informed during a meeting that the subject position had
been filled.
The Commission determines that the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact. The record indicates
that the alleged date of discrimination occurred in January 2008, but
that complainant did not initiate contact with an EEO Counselor until
October 10, 2008, which is beyond the forty-five day limitation period.
We note that complainant, on appeal, has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. Based on these circumstances, we find that
complainant had constructive knowledge of the applicable time limits.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
The agency's final decision dismissing the instant complaint on the
grounds of untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 17, 2009
__________________
Date
2
0120093044
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093044