01a03199
06-29-2000
Priscilla Lucas, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Priscilla Lucas v. Department of Veterans Affairs
01A03199
June 29, 2000
Priscilla Lucas, )
Complainant, )
) Appeal No. 01A03199
) Agency No. 08D
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to contact timely an EEO
counselor and raising a matter that was previously raised in a negotiated
grievance procedure.
BACKGROUND
Complainant filed a formal complaint on October 15, 1999, in which she
alleged that she was discriminated against on the basis of sex (female)
when she was sexually harassed in May 1998 and terminated from her
position on August 26, 1999. In its final decision, the agency dismissed
the first issue of the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(b) upon concluding that complainant failed to contact timely
an EEO counselor. The agency dismissed the second issue pursuant to
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) upon concluding that that
issue had been raised previously in a negotiated grievance procedure.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely Contact with EEO Counselor
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 evidence of record reveals that complainant alleged that she was
sexually harassed in May 1998. She did not initiate contact with
an EEO counselor until August 30, 1999, well over one year later.
In the counselor's report, she indicated that she did not contact an EEO
counselor within a timely manner because she feared retaliation. But, as
we have held, mere fear of reprisal is an insufficient justification for
extending the time limitation for contacting an EEO Counselor. See Duncan
v. Department of Veterans Affairs, EEOC Request No. 05970315 (July 10,
1998); Kovarik v. Department of Defense, EEOC Request No. 05930898
(December 9, 1993). For that reason, we find that complainant's sexual
harassment claim was properly dismissed for failure to contact timely
an EEO counselor.
Raising a Matter Previously Raised in a Grievance
An agency may dismiss a complaint, or portion thereof, where the
complainant has raised the matter in a negotiated grievance procedure
that permits claims of discrimination. Volume 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(4)).
In the instant case, the record shows that complainant filed a grievance
concerning the second issue of her complaint (i.e., termination).
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. Because the record indicates that complainant
elected to pursue the matter within the grievance procedure, we find
that the agency properly dismissed the complainant's termination claim
pursuant to 29 C.F.R. � 1614.107(a)(4).
CONCLUSION
Based on the foregoing, the agency's decision to dismiss complainant's
formal EEO complaint was appropriate and is, therefore, AFFIRMED.
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
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); 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:
June 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.