0120092317
09-04-2009
Mathew A. Fogarty, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mathew A. Fogarty,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092317
Agency No. 200L06292008103641
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 31, 2009, dismissing his complaint of unlawful
employment discrimination alleging a violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
At the time of the events at issue, complainant was employed by the
agency as a Physician in its medical facility in New Orleans, Louisiana.
In an EEO complaint filed on October 29, 2008, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when he received a letter dated February 29, 2008, informing him that his
name might be submitted to the National Practitioner Data Bank (NPDB) for
failure to properly monitor a patient on anticoagulant medication.1 The
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Specifically, the agency found that
although complainant received the letter in question on March 3, 2008,
he did not initiate contact with an EEO Counselor on the matter until
June 30, 2008, well beyond the required 45-day deadline. The instant
appeal followed.
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.
While conceding that he received notification that he might be reported to
NPDB on March 3, 2008, complainant asserts he did not develop a reasonable
suspicion that the agency's actions were motivated by unlawful retaliation
until May 28, 2008. While not altogether clear, complainant appears to
argue on appeal that he had to obtain and review the medical records
in this matter in order to determine that the agency's actions were
unjustified. This, he asserts, led to his suspicion that the agency's
actions were motivated by retaliation.
The record discloses that the alleged discriminatory event occurred
on March 3, 2008, but complainant did not initiate contact with an EEO
Counselor until June 30, 2008, over 100 days later and well beyond the
forty-five (45) day limitation period. The Commission is not convinced
by complainant's argument that he did not develop a reasonable suspicion
of discrimination until May 28, 2008, when investigation into the matter
apparently revealed he had provided the appropriate standard of medical
care in this matter. There is no reason provided by complainant that
indicates why he did not develop reasonable suspicion of retaliation
when he was first notified of the investigation in early March 2008.
It was this point which should have triggered him to seek EEO counseling.
Accordingly, the agency's final decision dismissing complainant's
complaint for untimely EEO Counselor contact 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
September 4, 2009
__________________
Date
1 It is undisputed that following a subsequent investigation,
complainant's name was not reported to the NPDB.
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0120092317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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