0120081307
05-20-2008
Petronilla Osuagwu, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Petronilla Osuagwu,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081307
Agency No. 200305802007103357
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 18, 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. The agency
dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO counselor contact.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Black) and national origin (Nigerian)
when her excepted appointment as a Registered Nurse was terminated,
effective May 10, 2007, for failure to properly maintain her nursing
license in a timely manner.
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 agency asserts that the alleged discriminatory event
occurred on May 10, 2007, but complainant did not initiate contact with
an EEO Counselor until July 13, 2007, which is beyond the forty-five
(45) day limitation period.
On appeal, complainant argues that she met the 45-day deadline with
a letter sent on her behalf by her attorney on June 18, 2007, to the
Director of Veterans Integrated Services Network (VISN Director),
who was the agency official with the authority to rescind or uphold
her termination. In that letter, in addition to arguing that the
termination should be overturned because the agency failed to follow its
usual policies and practices concerning notifying nurses prior to the
expiration of their licenses, the attorney alleged that the termination
was the result of discrimination on the basis of race and national origin.
In addition to the VISN Director, the attorney sent a copy of the letter
to the Medical Center Director and an agency Human Resources Specialist.
When no response to the June 18 letter was received, complainant, by
letter dated July 13, 2007, wrote the agency's EEO office to "reiterate
[her] request for counseling in connection with the Agency's termination
of her employment and failure to reinstate her, or even respond to her
request for post separation review to date."
The Commission has consistently held that a complainant satisfies the
criterion of EEO 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. See
Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Allen v. United States Postal Service, EEOC Request No. 05950933
(July 9, 1996). In this case, the complainant, through her attorney,
contacted the VISN Director, the Medical Director and a Human Resources
Specialist within the 45-day limitation period and raised her allegations
of discrimination. While there may be some question about whether
these officials are logically connected with the EEO process, we find
that this contact at least gave rise to a duty of the part of the agency
to direct complainant to an EEO counselor within the limitation period.
Lucy v. United States Postal Service, EEOC Appeal No. 01962691 (November
19, 1996). There is no evidence that the agency fulfilled this duty.
Therefore, given the specific circumstances of this case, the Commission
determines that complainant has satisfied the criterion for timely EEO
Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is REMANDED to the agency for
further processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
May 20, 2008
__________________
Date
2
0120081307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081307