01991391
10-15-1999
Lucia Torres de Ayala, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lucia Torres de Ayala v. Department of Veterans Affairs
01991391
October 15, 1999
Lucia Torres de Ayala, )
Appellant, )
) Appeal No. 01991391
v. ) Agency No. 98-4243
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on June 20, 1998, alleging
discrimination on the basis of physical disability (back) when she was
terminated on December 22, 1997.
In its FAD dated November 5, 1998, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(b). The agency found that appellant
contacted an EEO Counselor on June 3, 1998 and that the record
reflects that by December 22, 1997, appellant was aware of the alleged
discrimination. Appellant stated that she did not become aware of the
EEO process until she spoke with an attorney. The agency found that
appellant was aware of the process because on December 8, 1997, appellant
received a termination letter which included information regarding
the EEO process if she believed that this action was discriminatory.
Therefore, the agency found that appellant was aware of the EEO process
along with the time limitation and failed to raise her complaint to an
EEO Counselor in a timely manner. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence, appellant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
The record indicates that on December 8, 1997, appellant learned of
the agency's decision to terminate her. The record further indicates
that appellant's termination was to become effective December 22, 1997.
In accordance with 29 C.F.R. �1614.107(b), the forty-five (45) day time
period would begin to run on the effective date of appellant's termination
or December 22, 1997. However, appellant did not contact an EEO Counselor
regarding her termination within this time period, but instead, appellant
wrote a letter dated February 26, 1998, to an EEO Counselor.
Appellant alleges that she was unaware of the EEO process until February
1998, when her physician told her that she may have a discrimination
claim. We find that her position is unpersuasive and not sufficient to
waive the limitations period. Specifically, we find that appellant was
given information regarding the EEO process and its time limitation in
her termination letter dated December 8, 1997. We also note that, in
appellant's letter to the EEO Counselor dated August 4, 1998, appellant
states that when she received the termination letter, she asked her
supervisor about any recourse she may have regarding the termination.
Appellant's supervisor directed her to read the termination letter for
that information. In section 3 of the letter, the agency states that
appellant may file an EEO complaint if she believes that she has been
discriminated against. It also directs her to visit an EEO Counselor
within forty-five (45) calendar days if she would like information
concerning the complaint process. The Commission finds that, because
the letter contained information about the EEO process, appellant
had knowledge of the process and the forty-five (45) day time limit.
Therefore, we find that the agency properly dismissed appellant's
complaint pursuant to 29 C.F.R. �1614.107(b) for untimely EEO contact.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations