01a00941
05-10-2000
Michelle M. Ragsdale (Rogers), Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Michelle M. Ragsdale (Rogers), )
Complainant, )
)
v. ) Appeal No. 01A00941
) Agency No. 98-3612
Togo D. West, Jr., ) 98-3497
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On November 8, 1999, complainant filed an appeal with this Commission from
the agency's October 7, 1999 final decision pertaining to her complaints
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant received the final decision on October 18, 1999; therefore,
her timely appeal is accepted for review pursuant to 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant filed a formal complaint dated March 20, 1998, but postmarked
March 26, 1998, (Agency No. 98-3497) concerning harassment from March
1997 to July 1997, and �termination� when she retired rather than
accept a transfer offered by the agency. Complainant contacted an EEO
Counselor concerning these matters on April 28, 1998. Complainant filed
a second formal complaint, dated May 13, 1998, but postmarked May 28,
1998 (Agency No. 98-3612), concerning the same matters.
In her complaints, complainant explained that she failed to contact a
counselor sooner because she alleged reprisal in her prior complaint,
and did not realize that she must file a separate complaint for the
new incidents until speaking with the investigator of the prior claim
on March 13, 1998. Complainant also stated that her failure was due
to two reasons: (1) she was no longer employed by the agency; and (2)
the facility was very unsupportive of the EEO Counselor in her prior
complaint, refused to provide information as requested, and rendered
counseling a �waste of time.�
The agency dismissed Agency No. 98-3497 for stating the same claim raised
in Agency No. 98-3612. It found that 98-3612 was filed May 13, 1998,
and 98-3497 was filed on July 8, 1998.
The agency also dismissed 98-3612 for untimely counselor contact.
Specifically, the agency found that complainant first contacted an EEO
Counselor on April 28, 1998. The agency also found that complainant
should have had a reasonable suspicion of discrimination at the time she
retired in July 1997. The agency noted that the acceptance letter for
complainant's prior complaint, dated December 12, 1996, informed her to
seek counseling on any additional matters. Therefore, the agency found
that complainant's explanation for her untimeliness did not warrant
waiver of the applicable time limit.
ANALYSIS AND FINDINGS
Concerning the dismissal of one of the formal complaints, EEOC
Regulations provide for the dismissal of a complaint stating the same
claim already pending with the agency. See 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)). Complainant's two formal complaints concern the same
matter; therefore, the dismissal was proper.
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 Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected
to the EEO process and exhibit an intent to begin the EEO process.
Allen v. United States Postal Service, EEOC Request No. 05950933 (July
9, 1996). The Commission finds that complainant's contact occurred when
she first notified the EEO Investigator of her new claims. Nonetheless,
this March 13, 1998 contact was more than forty-five days after the date
she acquired a reasonable suspicion of discrimination.
Complainant's reasons for her untimely contact do not warrant an extension
or waiver of the forty-five day limitation period. Complainant states
that she assumed the claims would be considered part of her prior claim,
but she still failed to mention these claims to the investigator until
almost a year after they occurred. See Baldwin County Welcome Center
v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to
act diligently cannot invoke equitable principles to excuse lack of
diligence"). Therefore, the agency's dismissal of complainant's claims
was proper.
CONCLUSION
Accordingly, the agency's dismissal 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:
May 10, 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.