01a01182
10-11-2000
Frank T. Smith, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Frank T. Smith v. Department of Veterans Affairs
01A01182
October 11, 2000
.
Frank T. Smith,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01182
Agency No. 2004-0637-98219
DECISION
Frank T. Smith (complainant) filed a timely appeal with this Commission
from an agency's final decision (FAD) dated November 5, 1999, dismissing
his 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.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the basis of race (Black) when:
he was harassed when he requested emergency leave on June 12, 1998;
he was admonished and sent for a blood test when he complained of the
treatment he received when he called to request leave on June 12, 1998;
and
he was denied leave on June 12, 1998.<2>
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(2), for untimely EEO contact. Specifically, the agency noted
that complainant did not contact an EEO Counselor until September 9,
1998, long past the 45-day time requirement. While complainant argued
that the time requirements should be waived because he was advised
by a union official/mediator to go through mediation and then file an
EEO complaint if the mediation program did not resolve his concerns,
the agency noted that the �mediator� referenced by complainant was a
union official (UOM) and denied advising complainant to seek mediation.
In response to this argument, the agency stated that complainant received
training on the EEO process and had access to several bulletin boards
throughout the facility which contained information about the EEO process.
The agency concluded that complainant provided insufficient reasons for
waiving the time period and therefore dismissed his complaint
On appeal, complainant reiterates his argument that the 45-day time
requirement should be waived due to the fact that he received misleading
information from a union official. Complainant further notes that UOM
was chosen by management to attend ADR training and to be the mediator in
his case. Complainant further notes that he contacted the person assigned
by the agency to oversee the ADR program and was led to believe that he
had time to pursue the EEO process if mediation was unsuccessful.<3>
In response, the agency reiterates that UOM denies giving complainant
advice about the mediation process. Moreover, the agency notes that even
if UOM did advise complainant to begin the mediation process and told
him that he could subsequently file an EEO complaint, she did so in her
capacity as a union official, and not as a member of agency management .
The agency argues that the 45-day time period for contacting an EEO
counselor is not tolled simply because a complainant elects to avail
himself of another forum before contacting an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the case at hand, the agency established that complainant received
training on the EEO process and that posters explaining the EEO process
were posted throughout the building. Thus, whether or not complainant
was actually aware of the 45-day time limit, we find that the agency
established that complainant had constructive knowledge of the time limit.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995).
Complainant argues that he was misled into believing that he could file an
EEO complaint after he completed the mediation process. The Commission
has previously held that an agency may not dismiss a complaint based
on a complainant's untimeliness, if that untimeliness is caused by
the agency's action in misleading or misinforming the complainant.
See Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(March 25, 1996); see also Elijah v. Department of the Army, EEOC
Request No. 05950632 (March 28, 1996) (if agency officials misled
appellant into waiting to initiate EEO counseling, agency must extend
time limit for contacting EEO Counselor). However, even assuming
that UOM told complainant that he could file an EEO complaint if he was
not satisfied with the outcome of the mediation process, a contention
UOM denies, the agency maintains that UOM acted in her capacity as a
union official, and not as a management representative. The statement
submitted by UOM supports this contention, as she denied being a
mediator at the time in question and indicated that she was acting
as Union Representative. The fact that complainant received incorrect
information from a union representative, even if that representative was
not his chosen representative, does not establish that he was misled by
an agency action.
The Commission has consistently held that a complainant satisfies the
criterion of EEO Counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO Counselor, and by exhibiting an intent to begin the EEO process.
See Cox v. Department of Housing and Urban Development, EEOC Request
No. 05980083 (July 30, 1998); Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 8, 1996). Here, although complainant
satisfied the first of these requirement by contacting the Employee
Relations Specialist assigned by the agency to oversee the ADR Program
on July 17, 1998, he submitted no evidence that he exhibited an intent
to begin the EEO process at this point. Indeed, the record reveals that
complainant contacted the agency's mediation coordinator in an attempt to
resolve his concerns at the lowest level and planned to initiate the EEO
process only if he was not satisfied with the results of the mediation.
This does not suffice to exhibit an intent to begin the EEO process.
See, e.g., Winslow v. Department of Treasury, EEOC Request No. 05931193
(June 10, 1994) (complainant who contacted the Administrative Judge (AJ)
with jurisdiction over his pending complaints in an attempt to join new
allegations to those complaints, was not seeking EEO counseling when
he wrote letters to the AJ and therefore cannot use the date of those
letters as the date of EEO Counselor contact).
Accordingly, after a careful review of the record, including complainant's
arguments on appeal, the agency's response and arguments and evidence
not specifically addressed in this decision, we find that the agency
properly dismissed the complaint and hereby AFFIRM the FAD.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
October 11, 2000
__________________
Date
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
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The formal complaint does not give a detailed account of the events
of June 12, 1998, instead simply listing �admonishment�, � harassment�
and �time and attendance� as the issues. The formulation of the claims
used in this decision is based on other information in the record.
3 Complainant contends that he has two other complaints pending before
the agency, of which this complaint is the foundation, and that the
agency therefore improperly dismissed a portion of his complaint.
We note, however, that the subject complaint contained only the three
allegations noted above. Complainant provided no explanation of how his
complaints are related and a review of the Commission's records reveals
that complainant has no other appeals currently pending. Accordingly,
we will issue a decision on the subject appeal at this time. We remind
the agency that in investigating any later complaints of complainant,
any allegations dismissed as untimely must be considered as background
evidence. See Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999).
4 We note that under the revised 29 C.F.R. � 1614 regulations, the
agency is required to establish or make available an alternative dispute
resolution (ADR) program. See 29 C.F.R. � 1614.102(b)(2). If the agency's
ADR program allows aggrieved individuals to go directly into the ADR
process without first meeting with the EEO Counselor, the meeting with the
agency's ADR contact person will serve as the meeting with the Counselor.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO-MD-110), as revised, November 9, 1999, at 3-7.