Shirley M. Schuchert, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01996284 (E.E.O.C. Mar. 30, 2000)

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.