Mary M. Leight, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01992446 (E.E.O.C. Nov. 18, 1999)

01992446

11-18-1999

Mary M. Leight, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Mary M. Leight, )

Complainant, )

)

v. ) Appeal No. 01992446

) Agency No. 97-1112

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

We find that the agency's January 14, 1998 final decision dismissing

the complaint on the grounds of untimely EEO counselor contact is proper

pursuant to the provisions of 29 C.F.R �1614.107(a)(2).

The record shows that Complainant sought EEO counseling on October 8,

1997, alleging that she had been discriminated against on the bases of age

(none specified) and reprisal when: (1) she was forced to retire on June

3, 1996; and, (2) she was harassed and not promoted on February 24, 1993.

On November 12, 1997, Complainant filed a formal complaint of

discrimination alleging that she had been discriminated against on the

bases of age (1/23/38) and reprisal for prior EEO activity when: (1) she

was not promoted on February 24, 1993; (2) she was forced to retire on

June 3, 1996; (3) she was harassed from November 1992 through April 30,

1996; and, (4) she was subjected to

hostile work conditions from November 1992 through April 30, 1996.

The agency accepted the complaint for investigation. After the

investigation was completed, the matter was assigned for a hearing

before an EEOC Administrative Judge (AJ) . On December 31, 1998, the AJ

recommended that the agency dismiss Complainant's complaint for untimely

EEO Counselor contact. The AJ noted that it was reasonable to conclude

that Complainant had knowledge of the applicable time limits because

she had previously utilized the EEO process.

On January 14, 1999, the agency issued a final decision, dismissing

Complainant's complaint for failure to timely contact an EEO Counselor.

The record in this case contains a copy of a poster that the agency

indicates is posted at the facility where Complainant was employed, that

addresses the limitation period for timely contacting an EEO Counselor.

On appeal, Complainant contends that her prior EEO contact occurred more

than 3 years before her forced retirement. Complainant also contends that

she did not receive all applicable information on the EEO process as a

result of that isolated instance, but rather received only an undated 2

page memorandum and VA Form 4939. Moreover, Complainant contends that

because this prior matter was resolved informally, she never completed

a formal complaint and never knew the scope of conduct cognizable by

the EEOC or the applicable time limits. Complainant further contends

that she was unaware that a forced retirement could be discussed with

the EEO office.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).

In her complaint, Complainant alleged that she had been harassed from

November 1992 through April 1996, and forced to retire on June 3, 1996.

However, she did not seek EEO counseling until October 1997. To excuse

her untimeliness, Complainant claims that although she was previously

involved in prior EEO activity, such activity did not reach the formal

stage. She also claims that she was unaware that her forced retirement

was an issue which could be brought to the attention of an EEO counselor.

We are not persuaded by Complainant's arguments. Based on the foregoing,

we find that Complainant suspected or should have reasonably suspected

discrimination before the 45 days preceding her initial EEO counselor

contact on October 8, 1997. We determine that Complainant should have

sought EEO counseling within the 45-day time limit provided by EEOC

Regulations but failed to do so. Moreover, she has failed to show

that she was unaware of her EEO rights and obligations. Therefore,

the dismissal of the complaint was proper and is hereby 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (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:

November 18, 1999

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:

____________________