01996131
07-20-2000
Mary Trevino, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mary Trevino v. Veterans Affairs
01996131
July 20, 2000
.
Mary Trevino,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996131
DECISION
Complainant filed an appeal with this Commission from an agency's decision
dated June 29, 1999 pertaining to her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 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).
On November 11, 1998, complainant contacted the EEO office regarding
claims of discrimination based on physical disability. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
on December 28, 1998, complainant filed a formal complaint. The agency
framed the claims as follows:
1) Reassignment: EKG Tech to Clerk Typist (July 2, 1989 and November 5,
1989);
2) Removal: Due to disability (July 2, 1989 and November 5, 1989); and,
3) Other: Medical disability not explained (April 23, 1997).
The agency issued a decision dismissing the complaint on the grounds of
untimely counselor contact and on the alternative grounds of failure to
cooperate. The agency determined that, on April 23, 1999, complainant
was sent a letter requesting clarification regarding her claims.
Further, complainant was asked to explain why she failed to contact an
EEO Counselor within the time limitations and stated that failure to
provide the requested information within fifteen calendar days could
result in the dismissal of her complaint. According to the agency,
complainant failed to respond to the request.
On appeal, complainant asserts that in December 1998 and June 1999 she
spoke to an EEO Counselor, explaining why she did not seek help from
the EEO office. In addition, she states that she did not contact the
EEO Counselor �because [she] was trained to do clerical work and was
given a week in which to reply about accepting job.�
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 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.
The record reflects that, in a letter dated June 2, 1999, the agency
requested that complainant provide additional information regarding the
claims presented in her complaint. In addition, the letter requested an
explanation for failure to contact the EEO office within the time limits.
Although the agency's decision states that complainant never responded,
the record contains a letter from complainant postmarked June 28, 1999.
Therein, complainant describes the circumstances surrounding her claims.
With respect to her untimeliness, complainant stated that the only
information she received regarding EEO was for sexual harassment and
�nothing about your rights on your job.� According to complainant,
�[i]f you wanted information [about EEO] you needed to request from the
Personnel Department.� Complainant further stated, when discussing the
agency EEO office, that she felt that �all organizations and management
had a strong commitment to the Director and hospital.�
Although complainant appears to argue that she was unaware of the
EEO process and time limitations, the Commission determines that she
should have contacted the EEO office more than forty-five days prior
to November 10, 1998. We note that some of her claims occurred nine
years before she finally contacted an EEO Counselor. Complainant's own
statements indicate that she did not contact the EEO Counselor because of
a job offer she had received, and due to her belief that EEO office was
linked with management. We therefore determine that complainant failed
to present adequate justification for waiving or tolling the time limit.
Because of our disposition we do not consider whether the complaint was
properly dismissed for failure to cooperate.
Accordingly, the agency's decision to dismiss the complaint for untimely
Counselor contact was proper and is AFFIRMED.
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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.