01a54589
10-06-2005
Van Z. Frater v. Department of Veterans Affairs
01A54589
October 6, 2005
.
Van Z. Frater,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54589
Agency No. 200P-0691-2005101809
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 17, 2005, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African-American) and color (dark skin) when on
March 21, 2004, complainant was not selected for a WG-5705-5 position;
and on November 22, 2004, complainant was not selected for any of the
WG-5705-5 positions. The agency dismissed complainant's complaint for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2)
and for raising the same matter in a negotiated grievance, pursuant to
29 C.F.R. � 1614.107(a)(4).
Untimely EEO Counselor Contact
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 day
limitation period is triggered. See Howard v. Department of 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 have not 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 record indicates that complainant was notified of his non-selection
on November 22, 2004, but did not initiate contact with an EEO Counselor
until March 11, 2005, 45-days beyond the statutory period. Complainant
asserts on appeal that he filed his discrimination complaint after the
employee was hired on March 21, 2005, for the Tractor Operator position.
He maintains further that the EEO Counselor typed the wrong date, that
is, March 21, 2004, instead of March 21, 2005. However, this assertion
must be false because as the agency indicated complainant's March 11,
2004 EEO Counselor contact would pre-date the March 21, 2005 hiring date.
We also note that complainant listed March 21, 2004 in his complaint.
Complainant offers no adequate justification warranting an extension of
time beyond the 45 days. Therefore, the agency properly dismissed this
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2).
Raised Same Matter in a Negotiated Grievance
The agency also dismissed his complaint for raising his non-selection
in both an EEO complaint and a negotiated grievance, pursuant to
pursuant to 29 C.F.R. � 1614.107(a)(4). An individual wishing to file
a complaint or grievance, where discrimination claims are permitted,
must elect the EEO process or the negotiated grievance procedure,
but not both. See 29 C.F.R. � 1614.301(a). The record indicates that
complainant filed a written grievance with the agency on January 26,
2005, alleging the same issue raised in his April 25, 2004 complaint,
and he was covered by a negotiated grievance procedure that permitted
allegations of discrimination. On appeal, complainant does not contest
this procedural ground for dismissal and neither will we; the agency's
dismissal was proper.
Accordingly, we AFFIRM the agency's decision dismissing complainant's
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2), and for raising the same matter in a negotiated grievance,
pursuant to 29 C.F.R. � 1614.107(a)(4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 6, 2005
__________________
Date