Frank T. Smith, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 11, 2000
01a01182 (E.E.O.C. Oct. 11, 2000)

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.