Myriam Maldonado, et al.<1> Complainants,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01a03817 (E.E.O.C. Aug. 8, 2000)

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.