0120073914-r
03-12-2009
Sharon L. Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sharon L. Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073914
Hearing No. 530-2006-00153X
Agency No. 200H-0460-2005103255
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 15, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (African American),
disability (Depression), and in retaliation:
(1) On May 1, 2005, complainant's request to work in an office alone
was denied;
(2) Complainant's benefits and sick leave were applied incorrectly during
her leave of absence; and
(3) In July 2005, complainant became aware that her request to be
reimbursed for attorney's fees she incurred in order to receive pay when
she was out sick had been denied.
On October 3, 2005, the agency issued a Notice of Partial Acceptance.
In its notice, the agency informed complainant that the agency had
accepted claim (1) for investigation and dismissed claim (3) for failure
to state a claim. The agency also dismissed reprisal as a basis for
complainant's claims, finding that "a reprisal allegation based on union
activity fails to state a claim under Title VII." The agency's notice
did not indicate whether or not the agency had accepted claim (2) for
investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On June 7, 2006, complainant requested that the
AJ reverse the agency's decision to dismiss a portion of her claims.
On January 4, 2007, the AJ issued a decision dismissing claim (3) for
failure to state a claim. The AJ's decision also dismissed retaliation
as a basis for complainant's claims. On January 30, 2007, the AJ issued
a decision dismissing claim (2) for untimely EEO Counselor contact.
On August 8, 2007, the AJ issued a decision dismissing claim (1) for
untimely EEO Counselor contact. The agency subsequently issued a final
order fully adopting the AJ's decision(s).
On appeal, complainant objects to the dismissal of claim (2), stating
that she is "appealing the Decision to Dismiss the portion of the claim
that stated 'FAILURE TO PROPERLY PAY' which resulted in my having to
retain the services of an attorney to get properly paid."1 In response,
the agency urges the Commission to affirm its final decision.
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. McLouglin v. Department of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
In claim (2), complainant alleged that the agency failed to apply her
benefits and sick leave properly during her leave of absence from October
4, 2004 through February 28, 2005. The record contains a letter from
complainant's attorney to the agency's Acquisition Department Supervisor,
dated January 31, 2005, requesting that the agency remedy its error.
The January 31, 2005 letter also alleged that complainant was being
subject to disparate treatment and that the agency's actions were
retaliatory in nature. Therefore, the Commission finds that complainant
should have reasonably suspected that discrimination occurred by January
31, 2005. However, complainant did not initiate EEO counseling until
July 19, 2005, well after expiration of the forty-five day limitation.
Complainant failed to provide adequate justification to warrant
an extension or waiver of the applicable time limit in this case.
Consequently, we find that the AJ properly concluded that complainant
initiated untimely EEO Counselor contact.
Finally, we note that complainant raises new allegations of discrimination
on appeal. Complainant is advised to initiate contact with an EEO
Counselor if she wishes to pursue the additional allegations she raises
for the first time on appeal. The Commission will not accept new claims
raised on appeal.
Accordingly, the agency's final decision dismissing claim (2) for untimely
EEO Counselor contact 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
March 12, 2009
Date
1 Complainant neither contests nor addresses the agency's dismissal
of claims (1) and (3) on appeal. Therefore, the Commission will not
address these claims. See EEOC Management Directive 110, Chapter 9,
� IV.A. (November 9, 1999).
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0120073914
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073914