0120160011
03-11-2016
Merrill O.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merrill O.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160011
Agency No. 2003-0589-2015102523
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 4, 2015, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as an Advance Medical Support Assistant at the Agency's Veterans Affairs Medical Center in Kansas City, Missouri.
On March 23, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On June 24, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected him to harassment and a hostile work environment on the bases of race and sex when:
1. from June 2012 through January 2015, his supervisor violated his privacy rights when she told other employees about health matters concerning Complainant's daughter;
2. from June 2012 through January 2015, he heard the supervisor stated she could not stand to work with him;
3. from June 2012 through January 2015, the supervisor of primary care accused him of drinking on the job;
4. from June 2012 through January 2015, management failed to take action regarding the supervisor's harassment; and
5. he was removed from his Advance Medical Support Assistant position effective January 17, 2015.
In its September 4, 2015 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 23, 2015, which it found to be beyond the 45-day limitation period. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told him that his EEO contact was untimely because Complainant had attempted to resolve his concerns through the union.
Regarding Complainant's allegation that his union representative failed to represent him and inform him of the EEO complaint process, the Agency stated that the EEO Program Manager stated that Complainant was aware of the requisite 45-day time period because from 2011 through 2013, he received EEO training on the EEO complaint process.
The record contains a copy of the EEO Program Manager's affidavit. Therein, the EEO Program Manager stated that Complainant attended the New Employee Orientation wherein new employees were "informed of the EEO process, the 45-day limitation timeframe for contacting an EEO counselor and how to go about doing so. The attached sign in sheet, identified as Exhibit B, contains [Complainant's] signature on the second page, indicating that he attended New Employee Orientation on March 2, 2011."
Complainant, on appeal, argues that his union representative "misrepresented my case from the start back in September/2014 by not filing the discrimination in timely manner, along with holding my file and not releasing it to myself until February 26, 2015 which at that time this is when I realized what he had done...had I know what this president [union representative] was up to along with the [EEO Program Manager] and [Agency official] I would have contacted someone a lot sooner than what you are stating."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 personnel action, within forty-five (45) days of the effective date of the action.
The most recent alleged discriminatory event occurred on January 17, 2015. However, Complainant did not initiate contact with an EEO Counselor until March 23, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact.
Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).
The Agency's final decision dismissing the formal complaint for the reason stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160011
2
0120160011
5
0120160011