Marilyn J. Clove-Kelley, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 11, 2000
01a03846 (E.E.O.C. Aug. 11, 2000)

01a03846

08-11-2000

Marilyn J. Clove-Kelley, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Marilyn J. Clove-Kelley v. Department of Veterans Affairs

01A03846

August 11, 2000

.

Marilyn J. Clove-Kelley,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03846

Agency No. 200K-1282

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated March 31, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).

Complainant contacted an EEO Counselor on January 4, 2000, concerning

her claim of harassment by a supervising physician at her place of work.

When her concerns were not resolved, complainant filed a formal complaint

March 6, 2000, claiming that she was subjected to harassment and a hostile

work environment on the bases of race, religion, sex, national origin,

and age when:

On January 6, 1999, she brought the wrong patient into a procedure room,

and when she later returned with the correct patient, the supervisory

physician would not allow her to assist in the scheduled procedure; and,

On November 10, 1999, the supervisory physician pushed her hands away

from a patient and took over the procedure she was performing, and then

publically criticized her performance.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency determined that complainant failed to

contact an EEO counselor within forty-five days of either incident of the

claimed harassment. In its decision, the agency noted that complainant

claimed that the delay in contacting an EEO Counselor was due to her

waiting for management to set up a mediation to resolve the dispute.

The agency found that this was not a sufficient reason to toll the

time limit. Specifically, the agency found that choosing to engage

in a mediation outside the EEO process was tantamount to choosing

another venue for resolution, and did not excuse untimely EEO contact.

The agency also indicated that complainant knew the time limits because

of her attendance at several EEO informational sessions. Alternatively,

the agency dismissed the complaint for failure to state a claim because

the two incidents identified by complainant did not render her aggrieved,

and were not sufficiently severe to rise to the level of an actionable

claim of harassment.

On appeal, complainant argues that her EEO Counselor contact was timely

because she contacted the Counselor within forty-one days of the date

a management official told her she would be notified about scheduling

a mediation in her case, but failed to do so. In response, the agency

repeats the arguments in its final decision.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) requires

that complaints of discrimination should be brought to the attention

of the EEO Counselor within forty-five days of the date of the matter

alleged to be discriminatory or, in the case of a personnel action, with

forty-five 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 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, and 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.

We agree with the agency that waiting for notification regarding

mediation outside of the EEO process does not toll the time limit for

contacting an EEO Counselor, and we do not find the agency's lack of

promptness in notifying complainant about the mediation scheduling

to be a sufficient reason to waive the time requirement in this case.

Moreover, complainant does not claim that she was unaware of the time

requirement for contacting an EEO Counselor.

Accordingly, we find that the agency properly dismissed the instant

complaint for untimely EEO contact, and the dismissal is hereby

AFFIRMED.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 11, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.

2In light of this determination, we will not address the agency's

alternative grounds for dismissal.