01995122
01-28-2000
Lula D. Ellis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lula D. Ellis, )
Complainant, )
)
v. )
) Appeal No. 01995122
Togo D. West, Jr., ) Agency No. 98-4465
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 7, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 4, 1999, dismissing her
complaint for untimely counselor contact. <1> The Commission accepts
the appeal in accordance with EEOC Order No. 960, as amended.
On October 14, 1998, complainant contacted the EEO office regarding claims
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Informal
efforts to resolve complainant's concerns were unsuccessful. Accordingly,
on November 28, 1998, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of reprisal when she was
not offered a buyout with correspondent �Voluntary Separation Incentive
Payment�, available under provisions of Public Law 104-208.
The agency issued a FAD dismissing the complaint for untimely counselor
contact. According to the FAD, the law which established the buyout
program required that all participating individuals be separated from
employment no later than December 30, 1997. Therefore, complainant's
October 14, 1998 contact was well beyond the forty-five day time
limitation. When complainant was asked about her delayed contact, she
indicated that on June 30, 1998, she met with an Acting Associate Director
for Resources and Operations to voice her concerns as to why she was not
offered a buyout. Moreover, the FAD indicated that complainant should
be aware of the time frames, as she has used the EEO process before.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Based on a review of the record, the Commission finds that complainant
should have reasonably suspected discrimination more than forty-five
days before she contacted the EEO Counselor. The Counselor's Report
indicates that when the time limit was brought to complainant's attention
she explained that she had not contacted a counselor because she was
trying to negotiate with management. The Commission has previously held,
however, that the use of internal agency procedures to resolve a complaint
does not toll the limitations period for initiating an EEO complaint.
See Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April 25,
1991). The extensive records, provided by complainant herself, document
several months of such attempts at obtaining a buyout. In November and
December 1997 complainant expressed her interest in being considered
for the buyout. As early as January 1998 complainant knew that the
buyout had ended on December 30, 1997. Moreover, in July 1998 she
requested the list of employees eligible for the buyout be reopened to
determine how the employees were selected and why she was not accepted.
Thus, it is reasonable to conclude from the record that complainant at
least suspected the alleged discrimination months before she contacted
the EEO office. Complainant argues that she did not �learn� that
she would not get a buyout until October 10, 1998, when she received
a copy of a letter stating it was doubtful she would be considered.
We are unpersuaded by this argument, in light of the actions complainant
took prior to October 1998. The Commission has found that, since the
limitation period for contacting an EEO Counselor is triggered by the
reasonable suspicion standard, waiting until one has �supporting facts�
or �proof� of discrimination before initiating a complain can result
in untimely Counselor contact. See Bracken v. U.S. Postal Service,
EEOC Request No. 05900065 (March 29, 1990). Accordingly, the agency's
dismissal of the complaint was proper and AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 28, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.