01a03817
08-08-2000
Myriam Maldonado, et al. Complainants, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Myriam Maldonado, et al. v. Department of Veterans Affairs
01994739
August 8, 2000
.
Myriam Maldonado, et al.<1>
Complainants,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01994739, 01A03815, 01A03816, 01A03817, 01A03818
Agency Nos. 991778, 991721, 991990, 991992, 991778
DECISION
Complainants filed a timely appeal with this Commission from agency
final decisions (FAD) dated May 6, 1999 dismissing their complaints 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.<2>
The agency issued five separate FADS, identical except for the name
of the complainant. Complainants appealed and this Commission docketed
the appeal under five different appeal numbers. In their complaints,
complainants alleged that they were subjected to discrimination on the
basis of national origin (Puerto Rican) when on September 28, 1997, they
were downgraded from Diagnostic Radiological Technologist, GS-0647-6 to
Diagnostic Radiological Technician, GS-0647-5.<3>
The agency dismissed the complaints pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(2), noting that complainants were informed
that they would be downgraded on September 28, 1997, yet did not initiate
contact with an EEO counselor until February 1999. Complainants explained
that the letter informing them of their downgrades indicated that the
Office of Personnel Management (OPM) issued the final administrative
decisions on the classification of positions and that these decisions
were not subject to review, leading them to believe they had no recourse.
The agency determined that this explanation was insufficient to warrant
an extension of the 45-day time requirement.
On appeal, complainants raise two contentions. First, they allege
that they were not aware that the downgrades were motivated by
discrimination until long after September 28, 1997. They appear to
be arguing that they became aware of the discriminatory motivation in
June 1998. Second, they argue that they timely exercised their rights
by discussing the discriminatory conduct with the agency's Chief for
Human Resources Management Services (CHR) and with OPM officials,
but received misleading information about how to appeal.
In response to complainants' appeals, the agency notes that complainants'
attorney requested information from CHR as to how to appeal OPM
reclassification system decisions and was given this information.
The agency argues that even if complainants' attorney was understandably
confused about how to file an appeal of the downgrade with OPM, that does
not establish that complainants' failure to contact an EEO counselor in
a timely manner was the agency's fault. The agency also argues that in
addition to being untimely, the complaints were properly dismissed as
a collateral attack on OPM's classification process.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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). "The time
period is triggered as soon as a complainant suspects discrimination
and the complainant may not wait until all supporting facts have become
apparent." Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
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.
We note that the record establishes that each complainant attended
training on the EEO process and that posters explaining the time
limits for contacting an EEO counselor were present in the facility.
Complainants therefore cannot support the argument that they were not
notified of the time limits.
Even assuming that complainants did not have a reasonable suspicion that
the downgrades were motivated by discrimination until June 16, 1998, as
they allege, they still failed to contact an EEO counselor until eight
months later. They argue that their earlier contact with CHR and OPM
should be sufficient to meet the time requirements and note that when they
contacted CHR about the downgrades, they were only given information on
how to appeal the classification decision with OPM. As noted above,
however, complainants should have been aware of how the EEO process
works through the training they received and the posters present in the
facility. Moreover, while the Commission has consistently held that a
complainant satisfies the criterion of Counselor contact by contacting an
agency official logically connected with the EEO process, even if that
official is not an EEO Counselor, and by exhibiting an intent to begin
the EEO process, here the record establishes that complainants and their
attorney asked CHR how OPM's classification decision could be appealed and
did not mention the EEO process or otherwise exhibit an intent to begin
the EEO process. See Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 8, 1996).
After a careful review of the record we find that complainants' failed
to provide sufficient evidence to justify an eight month extension of
the 45-day time requirement for contacting an EEO Counselor, nor did
they establish that their correspondence with CHR and/or OPM satisfies
the criterion of Counselor contact.
Accordingly, the agency's dismissal of the complaints for failure to
initiate contact with an EEO Counselor within the required time period
was proper and the FADs are hereby AFFIRMED.<4>
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
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The following is a list of all the other complainants in this
appeal and the corresponding appeal and agency numbers: Carmen
Colon-Martinez, 01A03815, 991721; Hector Negron, 01A03816, 991990;
Orlando Rodriguez-Colon, 01A03817, 991992; Nitza Rodriguez-Pagan,
01A03818, 991778.
2On 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.
3As an initial matter, the Commission finds that the instant appeals
by the individuals listed in footnote 1 of this decision, should be
consolidated for joint processing. All of the complainants have raised
the same allegation of discrimination and the same arguments on appeal
to the Commission. Therefore, the Commission will issue one consolidated
decision.
4 As we have affirmed the agency's dismissal on untimely EEO Counselor
contact grounds, we will not address the agency's argument that the
complaints amount to a collateral attack on OPM's processes.