01996284
03-30-2000
Shirley M. Schuchert, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Shirley M. Schuchert, )
Complainant, )
)
v. ) Appeal No. 01996284
) Agency No. 98-3649
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On August 11, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 12, 1999, pertaining to
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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of sex
(female) and age (date of birth April 15, 1948) when:
On January 8, 1998, complainant's GS-318-5 Secretary/OA position was
filled by someone else promoted to a GS-318-6;
Complainant suffered harassment when:
On December 15, 1997, complainant's supervisor failed to certify
complainant's request for Leave-Without-Pay (LWOP) without a medical
certification and complained that he needed a full-time secretary although
complainant was physically able to work only part-time;
On January 7, 1998, complainant was advised that she was being reassigned
as a GS-5 with future upgrade potential to a GS-6, but complainant
already performed at the GS-6 grade level; on January 8, 1998, however,
complainant was advised that she was misinformed and would be reassigned
to a GS-5 position.
On April 12, 1998, complainant learned that the agency placed her
in Absent-Without-Leave (AWOL) status, denied her requests for LWOP,
advanced sick leave, and placement in the donated leave program, and
failed to accept her physician's statement.
The agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant failed to contact a
counselor until August 13, 1998, more than forty-five days after the
incidents at issue.
On appeal, complainant argues that she is being penalized for the
neglect of the union president. She contends that the union president
told her that he was handling the matter, and that she need not worry.
When complainant realized that the union had done nothing regarding her
claims, she contacted an EEO Counselor.
In response, the agency argues that internal efforts to address the
claims, or attempts to address the matter through the grievance process,
do not toll counselor contact time limitations.
The Counselor's Report, dated September 29, 1998, provides that the EEO
Counselor asked complainant to explain her untimeliness on two separate
occasions, but complainant never responded. The Counselor's Report lists
complainant's initial counselor contact as August 13, 1998. The record
also contains a document entitled �Initial Referral Form.� This form
indicates that on July 30, 1998, complainant requested counseling.
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.
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 Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to
the EEO process and exhibit an intent to begin the EEO process. Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
Complainant's request for counseling from the EEO office on July 30, 1998,
established EEO Counselor contact. Nonetheless, complainant still failed
to contact a counselor within forty-five days of her most recent claim.
It appears that complainant attempted to pursue her complaint within the
grievance or other internal processes, but received no response from those
forums. This does not justify an extension of the time limit. See Rios
v. United States Postal Service, EEOC Request No. 05940305 (September
20, 1994) (internal appeals or informal efforts to file a grievance
do not toll the time limitation for EEO Counselor contact); Hosford
v. Department of Veterans Administration, EEOC Request No. 05890038
(June 9, 1989). Further, the Commission notes that complainant was
twice asked to explain her untimeliness, but she failed to respond.
Complainant voiced reasons for her delay for the first time on appeal.
CONCLUSION
Accordingly, the agency's dismissal is 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 30, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.