01985558
02-24-2000
Monique Van Wersch, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Monique Van Wersch v. Department of Health and Human Services
01985558
February 24, 2000
Monique Van Wersch, )
Complainant, )
)
v. ) Appeal No. 01985558
) Agency No. NIAID970054
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
On July 9, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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> In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of physical and mental disability when she was not converted
from an excepted service appointment to a competitive service appointment
during the period beginning March 26, 1989, and ending on September
6, 1995.
In its June 8, 1998 FAD, the agency dismissed complainant's claim pursuant
to EEOC Regulations for failure to initiate contact with an EEO Counselor
in timely manner. Specifically, the agency determined that because
complainant's June 18, 1997 initial EEO Counselor contact occurred more
than forty-five days after the September 6, 1995 end-date identified in
complainant's claim, it was untimely. The agency also determined that,
regardless of complainant's assertion in her complaint that she did not
suspect discrimination until June 17, 1997, a combination of previous
events should have given her a reasonable suspicion of the alleged
discrimination at a much earlier date. In particular, the agency
determined that the facts surrounding complainant's July 3, 1995 EEO
Counselor contact on a prior complaint and the resulting prior formal
complaint filed on November 8, 1995, her September 6, 1995 termination
and subsequent October 5, 1995 Merit Systems Protection Board (MSPB)
mixed-case appeal, and her acknowledged September 7, 1995 notice that she
was a Schedule A employee who was not converted to a competitive service
appointment, showed that a reasonable person in her circumstances would
have developed a suspicion of the alleged discrimination shortly after
being terminated. Consequently, the agency found no basis to waive the
forty-five-day time limit for EEO counseling.
On appeal, complainant contends that she did not know until a July 17,
1997 witness interview conducted for her MSPB hearing that she had
not been converted to a competitive position prior to her termination.
Complainant further states that it was only during that interview, with
her now retired second line supervisor, that she learned that the failure
to convert her to the competitive service was motivated by intentional
disability discrimination.
In response, the agency reasserts that events evident in the record
indicate that complainant knew or should have known of potential
discrimination with regard to the agency's decision not to convert
her prior to the date claimed. The agency notes that complainant was
terminated on September 6, 1995, and filed an MSPB mixed-case appeal
concerning her termination (alleging discrimination based on disability
and retaliation), and also filed a formal complaint on November 8, 1995,
alleging discrimination based on disability and in reprisal for prior
EEO activity. The agency also submits complainant's April 26, 1996
affidavit (submitted in response to a request for additional information
concerning her November 8, 1995 disability discrimination complaint),
which states that the day after her termination she had discussed her
removal with the appropriate personnel officer and was informed that
because she was a Schedule A employee "who was never converted," she
could be fired at will without appeal rights.
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.
Upon review of the record, we concur with the agency's determination that
complainant's EEO Counselor contact was untimely. Evidence shows that the
day after her September 6, 1995 termination, complainant was admittedly
told by an agency personnel officer that she was never converted to
the competitive service and that she therefore could be fired at will.
After receiving this information, complainant shortly thereafter asserted
disability discrimination in an MSPB appeal concerning her termination,
and also filed a separate formal EEO disability discrimination complaint
that had originated prior to her termination. We find that under these
circumstances complainant had, or should have had, a reasonable suspicion
that her non-conversion was discriminatory, and was therefore obligated
to initiate EEO counseling at that time. As the record indicates that
she did not seek EEO counseling until well beyond the forty-five-day
time limit, we find that the agency properly dismissed complainant's
claim for untimely EEO Counselor contact. Accordingly, the agency's
decision is AFFIRMED for the reasons set forth above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.