Michelle M. Ragsdale (Rogers), Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 10, 2000
01a00941 (E.E.O.C. May. 10, 2000)

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.