Lula D. Ellis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 28, 2000
01995122 (E.E.O.C. Jan. 28, 2000)

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.