Jimmie L. Miller, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0120093516 (E.E.O.C. Dec. 10, 2009)

0120093516

12-10-2009

Jimmie L. Miller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Jimmie L. Miller,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120093516

Agency No. 200L06142009102783

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 21, 2009, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

At the time the events at issue arose, complainant was employed by

the agency as a Housekeeping Aide at its VA Medical Center in Memphis,

Tennessee. In his complaint, complainant alleged that he was subjected

to discrimination on the bases of race (Black), disability, age, and

reprisal for prior protected EEO activity when:

1. On October 16, 2007, complainant received a proposed notice of 14

day suspension which was subsequently sustained with an effective date

beginning November 14, 2007, and

2. On December 12, 2008, complainant received a proposed notice of

removal from federal service which was sustained with an effective date

of February 20, 2009.

In its final decision, the agency dismissed the complaint, pursuant to

29 C.F.R. � 1614.107(a) (2), for failure to adhere to established time

frames for contacting an EEO counselor. In the alternative, the agency

also dismissed claim 1, pursuant to 29 C.F.R. � 1614.107(a)(4), for

electing to pursue the same matter before the Merit Systems Protection

Board (MSPB). The instant appeal followed.

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 record indicates that complainant first contacted an

EEO counselor to raise these matters on April 28, 2009, exceeding the

45-day time limitation.

However, on June 12, 2009, the agency sent complainant a letter requesting

additional information as to why he exceeded the 45-day time requirement

for contacting an EEO counselor. In his June 20, 2009 response,

complainant indicated that he did not contact a counselor because his

letter of removal only indicated that he had a right to appeal his removal

to the Merit Systems Protection Board (MSPB), and did not provide EEO

complaint rights.

In its dismissal decision, the agency asserts that despite the rights

provided complainant in his letter of removal, complainant knew or

should have known of the relevant time frames for contacting an EEO

counselor because he had attended a number of relevant training sessions,

and the facility had EEO-related posters on display that contained the

relevant time frames. In addition, the agency noted that complainant

had experience filing previous EEO complaints. With regard to claim 1,

the agency found that complainant had filed an appeal of the suspension

with the MSPB in 2007, prior to filing the instant formal EEO complaint

on June 9, 2009.

After careful review of the record, the Commission concurs with the

agency's dismissal of claim 1 concerning the 2007 suspension as untimely

raised and previously raised with the MSPB. The agency's dismissal of

this claim is affirmed.

However, the Commission finds the agency improperly dismissed claim 2

concerning the February 2009 removal. The Commission recognizes that

complainant exceeded the 45-day limitation period by approximately

three weeks. The Commission also acknowledges that agency's proffered

evidence that complainant was aware of the relevant limitation period.

However, we conclude that this is an appropriate case for extending the

limitation period. We find credible complainant's assertion that he was

confused about whether or not his removal could properly be raised in

the EEO process because the letter of removal only gave him rights to

appeal to the MSPB. The issue then is not whether or not complainant

knew about the limitation period, which the agency's evidence suggests

he did, but whether he knew that he could utilize the EEO complaint

process at all to challenge his removal. Because of this confusion,

and the relatively short period of time by which complainant exceeded

the regulatory time frame, we reverse the dismissal of claim 2 and remand

it to the agency for further processing.

Accordingly, the agency's final decision dismissing claim 2 of

complainant's complaint is reversed and the claim is remanded to the

agency for processing in accordance with the following Order.

ORDER (E0408)

The agency is ordered to process the remanded claim (removal)

in accordance with 29 C.F.R. � 1614.108 et seq. The agency shall

acknowledge to the complainant that it has received the remanded claims

within thirty (30) calendar days of the date this decision becomes final.

The agency shall issue to complainant a copy of the investigative file

and also shall notify complainant of the appropriate rights within one

hundred fifty (150) calendar days of the date this decision becomes

final, unless the matter is otherwise resolved prior to that time.

If the complainant requests a final decision without a hearing, the

agency shall issue a final decision within sixty (60) days of receipt

of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

December 10, 2009

__________________

Date

2

0120093516

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120093516