Robert Doren, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 10, 2009
0120093407 (E.E.O.C. Nov. 10, 2009)

0120093407

11-10-2009

Robert Doren, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Robert Doren,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120093407

Agency No. 200P-0660-2009103156

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 3, 2009, dismissing his formal 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.

On May 21, 2009, complainant initiated EEO Counselor contact. Informal

efforts to resolve his concerns were unsuccessful.

On June 29, 2009, complainant filed the instant formal complaint.

Therein, complainant alleged that he was subjected to discrimination on

the bases of race and in reprisal for prior protected activity when:

on January 6, 2009, his position as Native American Liaison was

discontinued and he was assigned as a minority veterans project

coordinator (MAPC) and substance abuse program therapist.

In its August 3, 2009 final decision, the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of

untimely EEO Counselor contact. The agency determined that although

complainant cited the date of the alleged discriminatory event as June

4, 2009, the record reflects that the alleged of discriminatory event

occurred on January 6, 2009, when his position was discontinued and he

was offered a different position as either as a MAPC coordinator or a

substance abuse program therapist. The agency further determined

that complainant's initial EEO contact was beyond the 45-day limitation

period. The agency

stated that in the EEO Counselor's Report, complainant was asked

to provide an explanation why he did not seek counseling within the

45-day time frame. In his response, complainant stated that he tried to

resolve the issue at the facility level and Human Resources was willing

to work with him to resolve the issue. The agency further stated that

complainant's use of an internal agency procedure does not toll the time

limit for initial EEO contact.

On appeal, complainant argues that he did not initiate EEO Counselor

contact "immediately because I had no grounds to believe the position

was eliminated because of discrimination or reprisal from past actions.

In any case I felt I needed to get more information and not just cry

discrimination. I had asked for policy and procedure for this action

and was ignored."

In response, the agency argues that complainant had or should have had

reasonable suspicion of reasonable suspicion of unlawful employment

discrimination prior to May 21, 2009 because he had engaged in prior

protected activity.

Complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(2), for untimely EEO Counselor contact. The alleged

discriminatory event identified by complainant in his formal complaint

occurred on January 6, 2009, but complainant did not initiate contact

with an EEO Counselor until May 21, 2009, well beyond the forty-five

(45)-day limitation period. 29 C.F.R. � 1614.105(a)(1). Complainant did

not present persuasive argument or evidence warranting an extension of

the time limit for initiating EEO Counselor contact. See 29 C.F.R. �

1614.604(c). In addition, we note that complainant suggested the

possibility of discrimination when he attempted to resolve his issue

through an internal agency process, and therefore, demonstrated he

suspected discrimination at that time.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

November 10, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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