Theresa T. Perry, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01994338 (E.E.O.C. Jul. 24, 2000)

01994338

07-24-2000

Theresa T. Perry, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Theresa T. Perry v. Department of Veterans Affairs

01994338

July 24, 2000

Theresa T. Perry, )

Complainant, )

)

v. ) Appeal No. 01994338

) Agency No. 98-4166

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision dated March 24, 1999, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In her

complaint, complainant alleged that she was subjected to discrimination

on the basis of physical disability (herniated disks) when:

Complainant was demoted April 11, 1998;

Complainant was reassigned April 11, 1998;

Complainant was issued a letter dated June 25, 1998, advising her that

she would be terminated from her position effective July 17, 1998; and

Complainant was harassed October 5, 1998.

The agency dismissed claims (1) - (3) for raising the same matter

addressed in the negotiated grievance process. Alternatively, the agency

dismissed the claims for untimely counselor contact. The agency also

dismissed claim (4) for being moot.

On appeal, complainant argues that she had no reason to suspect

discrimination until meeting with the Chief of Staff (and her union

representative) on October 5, 1998. According to complainant, the

Chief informed complainant that she was terminated because her injuries

prevented her from performing the duties of a nurse. Complainant contends

that she contacted a counselor immediately thereafter. Complainant argues

that she did not raise discrimination in her grievance because she had

no reason to suspect disability discrimination prior to the October 5,

1998 meeting.

The record contains a letter from complainant's attorney, dated April 30,

1998, concerning her grievance. This letter asserted that �reassigning

[complainant] is unfair and discriminatory. [The agency has] not

reassigned other Clinical Nurse Managers during a period of illness.�

Further, the record contains a letter from the Chief, dated October 8,

1998, concerning a step-3 grievance meeting conducted on October 5, 1998.

The Counselor's Report, dated November 16, 1998, states that complainant

initially contacted an EEO Counselor on October 21, 1998.

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 he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Complainant contends that she had no suspicion of discrimination until

the October 5, 1998 grievance meeting. However, the letters from her

attorney contradict her contention. One of these letters states that

complainant's demotion and reassignment, effected because of her illness,

were discriminatory. Accordingly, the Commission finds that complainant

had a suspicion of discrimination when the incidents occurred; claims

(1) - (3) were properly dismissed for untimely counselor contact.<2>

Although the agency dismissed claim (4) for being moot, the Commission

finds it more properly analyzed for whether it states a claim.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))

provides, in relevant part, that an agency shall dismiss a complaint

that fails to state a claim. An agency shall accept a complaint from

any aggrieved employee or applicant for employment who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

Claim (4) concerns the behavior of agency officials at a step-three

grievance meeting. The Commission has held that an employee

cannot use the EEO complaint process to lodge a collateral attack on

another proceeding. See Wills v. Department of Defense , EEOC Request

No. 05970596 (July 30, 1998) (collateral attack fails to state a claim);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). The proper forum for complainant

to have raised his challenges to actions which occurred during the

grievance proceeding was at that proceeding itself. Therefore, the

Commission finds that claim (4) fails to state a claim.

CONCLUSION

Accordingly, the agency's dismissal of claims (1) - (4) 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 24, 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

1On 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.

2Since we are affirming the agency's dismissal of claims (1) - (3) on

the grounds of untimeliness, we will not address the agency's alternative

grounds for dismissal, i.e., that they were raised in a prior grievance.