01994338
07-24-2000
Theresa T. Perry, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
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.