0120091392
07-22-2009
Eva Moody, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eva Moody,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091392
Agency No. 200P-0593-2008103930
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) decision dated January 7, 2009, dismissing her 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. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of race/national
origin (black, African-American), sex (female), and age (55) when:
1. on May 30, 2007 and May 7, 2008, she was denied the opportunity to
attend GSA Smart Pay Conferences, and on June 2, 2008, she was denied
the opportunity to attend National Travel Form Training,1
2. from June 2007 to present, her supervisor treated her differently by
failing to acknowledge her or say anything to her, but he spends time
with other staff, his "pets," and
3. on April 24, 2008, she was not selected for the position of Budget
Analyst, GS-560-7/9, under announcement number 593-08-079.
The FAD dismissed claims 1 and 3, in relevant part, for failure to timely
initiate contact with an EEO counselor. It reasoned that complainant
contacted an EEO counselor on July 24, 2008, beyond the 45 calendar day
time limit on any of the incidents to do so. The FAD dismissed claim
2 for failure to state a claim, reasoning it did not rise to the level
of actionable harassment.
Complainant's position is Travel Coordinator, GS-7. On appeal, she
argues that every time she requested training that required travel, it
was denied, but other employees were permitted to travel for training
pertaining to their positions. She identifies other employees and their
travel training dates, and contends that she is not being prepared
for advancement. In opposition to the appeal, the agency argues the
FAD should be affirmed.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). Under 29 C.F.R. � 1614.105(a)(2), an agency
or the Commission shall extend the 45 day time limit to initiate EEO
counseling where an individual did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred.
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.
Complainant told the EEO counselor that she did not see a pattern of
discrimination until the time that she contacted the counselor. We are
not persuaded by this contention. For example, according to the initial
contact and interview worksheet, complainant stated each time she asked
for certain training, she was told it was not worthwhile. Emails sent by
and to complainant in May 2008 show that while the supervisor's response
to complainant's request to attend the GSA Smart Pay Conference was not
beneficial because it was mostly banks and other vendors showing off
their products, the agency National Travel Card Program Manager countered
it had valuable specified training for complainant and she should go.
Complainant had reason to suspect more than 45 days prior to initiating
contact with an EEO counselor that her supervisor's denials were
discriminatory. The FAD's dismissal of claims 1 and 3 is affirmed.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable.
Complainant has not provided sufficient specificity to show claim 2
states a claim of harassment. She does not provide context to situations
where she is not acknowledged or spoken too. She does not contend,
for example, that the supervisor does not sufficiently communicate
assignments to her or not respond to questions or concerns.
The FAD 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
July 22, 2009
__________________
Date
1 Complainant contended this was all denied by her supervisor, and her
attendance at the first conference was also denied by another management
official.
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0120091392
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091392