Martin Gray, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 18, 2009
0120093659 (E.E.O.C. Dec. 18, 2009)

0120093659

12-18-2009

Martin Gray, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Martin Gray,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120093659

Agency No. 2003-0549-2009102123

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 13, 2009, dismissing his formal 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.

On March 13, 2009, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

On June 17, 2009, complainant filed the instant formal complaint.

Therein, complainant alleged that he was subjected to discrimination on

the bases of race and sex when:

he was subjected to harassment from October 2008 through January 21,

2009, resulting in his constructive discharge.

In its August 13, 2009 final decision, the agency dismissed complainant's

formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds

of untimely EEO Counselor contact, asserting he did not contact the EEO

Counselor within the required 45-day limitation period. The agency noted

that a review of the record reflects that complainant tried to resolve the

issue through the chain of command before filing the instant complaint.

The agency determined that complainant's use of an internal agency

procedure does not toll the time limit for initial EEO contact.

On appeal, complainant argues that he was not aware of the 45-day

limitation period for contacting an EEO Counselor. Complainant further

states "I knew that there was a 90 day timeframe; I thought I was within

that time frame to the best of my knowledge. I was off in my calculation

by 4 days [emphasis in the original]."

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 he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission determines that the agency properly dismissed the instant

complaint for untimely EEO Counselor contact. The record indicates that

the last alleged date of discrimination occurred on January 21, 2009,

but that complainant did not initiate contact with an EEO Counselor until

March 13, 2009, which is beyond the forty-five day limitation period.

The record contains a memorandum dated August 6, 2009 from the EEO Manager

(M1). Therein, M1 stated that from September 2, 2008 through September

4, 2008, complainant attended EEO related training when he attended the

New Employee Orientation (NEO).1 M1 further stated that she was aware

of the information provided during the NEO. Specifically, M1 stated

that subjects discussed during the NEO "included Prevention of Sexual

Harassment and No Fear Act. The EEO process including EEO time frames

for processing an EEO complaint are included in these training courses.

Included is the agenda for NEO whereby you can see that the EEO process

was discussed." M1 also stated that EEO posters were on display in

complainant's facility that contained the 45-day limitation period.

M1 stated that the EEO posters "are located on the EEO bulleting boards

in building one and building two. They are also posted on all bulletin

boards in all work areas. The EEO posters have been located on these

billboards since 2003."

The record also contains a copy of complainant's NEO signed by

complainant reflecting that he underwent orientation from September 2,

2008 to September 4, 2008; and a copy of NEO agenda which outlined the

45-day limitation period for contacting an EEO Counselor. The record

contains a copy of the EEO poster outlining the 45-day limitation period

and pictures of the EEO posters posted on the billboards in buildings

1 and 2. Based on these circumstances, we find that complainant had

constructive knowledge of the applicable time limits. In addition, we

note that complainant suggested the possibility of discrimination when

he attempted to resolve his issue through an internal agency process,

and therefore, demonstrated he suspected discrimination at that time.

Accordingly, the agency's final decision dismissing the instant complaint

is AFFIRMED.

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 (S0408)

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 (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 18, 2009

__________________

Date

1 The record reflects that M1 inadvertently identified the date of NEO as

September 29, 2008 instead of from September 2, 2008 through September 4,

2008.

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2

0120093659

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093659