0120080476
03-13-2008
Penny H. Mitchell, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Penny H. Mitchell,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080476
Agency No. 200406592007102192
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 20, 2007, dismissing her complaint 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of age (D.O.B. 01/09/50)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. On May 29, 2006, she was not promoted to the next grade level;
2. On unspecified dates, complainant's supervisor scrutinized her work
performance;
3. On unspecified dates, complainant was threatened to be placed on a
performance improvement plan; and
4. During June 2005, complainant's request to attend Coding Boot Camp
training was denied.
The agency dismissed claim 1 on the grounds of untimely EEO counselor
contact in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
Specifically, the agency found that complainant's EEO contact on April
11, 2007 regarding her May 29, 2006 failure to be promoted was beyond
the time limits for counselor contact. The agency dismissed claims 2,
3, and 4 on the grounds that the claims were previously raised through
the agency's negotiated grievance procedure.
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 record indicates that complainant contacted an EEO counselor on April
11, 2007 regarding her May 29, 2006 failure to be promoted, which was
beyond the time limitation for timely EEO contact. Complainant does
not indicate that she was unaware of the time limits, or that she was
prevented by circumstances beyond her control from timely contacting an
EEO Counselor. Moreover, the agency has provided the Commission with
copies of EEO posters containing relevant counselor contact information
which are posted at complainant's workplace. On appeal, complainant has
failed to provide any explanation for her delay in seeking counseling
regarding claim 1. In that regard, we find that the agency's dismissal
of claim 1 as untimely was proper.
Turning now to claims 2, 3, and 4, the Commission finds that the
agency's dismissal was proper. The regulation set forth at 29 C.F.R. �
1614.107(a)(4) provides that an agency may dismiss a complaint where the
complainant has raised the matter in a negotiated grievance procedure that
permits claims of discrimination. In the instant case, the record shows
that complainant filed a grievance concerning the matters identified
in claims 2, 3, and 4. Additionally, the record shows that under the
terms of the agency's union agreement, employees have the right to raise
matters of alleged discrimination under the statutory procedure or the
negotiated grievance procedure, but not both. As the record indicates
that complainant elected to pursue the matter within the grievance
procedure, we find that the agency properly dismissed claims 2, 3,
and 4 pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's decision dismissing complainant's complaint
is hereby affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 13, 2008
__________________
Date
2
0120080476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080476