0120090311
02-04-2009
Hassan H. Tabrizi,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090311
Agency No. 200J-0676-2008103509
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated September 3, 2008, 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.
On May 28, 2008, complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful.
On August 7, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race, national origin, religion, and color when1:
(1) on November 1, 2004, he was terminated from employment during his
probationary period for failure to timely complete his background check
application;
(2) on November 6, 2004, he was denied due process when he was not
granted a timely and in-person post separation review;
(3) in October 2004, he never received his last pay; and
(4) in April 2008, his income tax return incentive check was withheld
by the Department of Treasury.
In its September 3, 2008 final decision, the agency dismissed claims
(1) - (3) 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 Counselor contact occurred on May 28, 2008, which it found
to be beyond the 45-day limitation period. The agency dismissed claim
(4) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant was not aggrieved. Specifically, the agency
determined that it does not have jurisdiction concerning the actions of
the Department of Treasury regarding complainant's income tax incentive
being withheld.
Claims (1) - (3)
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 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.
The Commission determines that the agency properly dismissed claims (1) -
(3) for untimely EEO Counselor contact. The record indicates that the
last alleged date of discrimination occurred in October 2004, but that
complainant did not initiate contact with an EEO Counselor until May 28,
2008, which is beyond the forty-five day limitation period.
The record contains an affidavit dated November 26, 2004, from the Human
Resources Assistant (HR Assistant). Therein, the HR Assistant stated
that she was aware of the information provided during new employee
orientation in October 2004 at the agency's VAMC located in Tomah,
Wisconsin; and the information provided to new employees included a
copy of the Employee Handbook. Specifically, the HR Assistant stated
that the Employee Handbook "includes information about the EEO process
and the time limits involved. Employees are advised of the 45-day time
limit for contacting an EEO Counselor following an alleged incident of
discrimination."
The record also contains a copy of complainant's New Employee Orientation
signed and dated by complainant on October 5, 2004, reflecting that he
underwent orientation on October 4 and 5, 2004. The record reflects that
as part of the 9:45 am - 11:15 am New Employee Orientation Computer
Assisted Instruction given on October 4, 2004, "Equal Employment
Opportunity (EEO)" was one of the many topics covered. A copy of
the Employee Handbook contains information about the EEO procedure
and time limits for initiating EEO Counselor contact. Based on these
circumstances, we find that complainant had constructive knowledge of
the applicable time limits.
Claim (4)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that the agency properly dismissed claim (4) for
failure to state a claim. Specifically, we agree with the agency that
the matter raised in claim (4) is beyond the jurisdiction of the agency.
This matter is more properly pursued through the Department of Treasury.
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
February 4, 2009
__________________
Date
1 For purposes of clarity, the Commission has re-numbered complainant's
claims as claims (1) - (4).
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0120090311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120090311