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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