01995672
05-26-2000
William A. Davidson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
William A. Davidson, )
Complainant, )
)
v. )
) Appeal No. 01995672
Togo D. West, Jr., ) Agency No.99-3114
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On July 8, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) concerning his complainant that the
agency discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
On July 7, 1998, complainant contacted the EEO office alleging that
he was discriminated against on the bases of his race (Black) and in
reprisal for engaging in previous EEO activity when:
1) on August 4, 1996, in order to harass him, his duty hours were
changed;
2) on August 4, 1996, he informed his supervisor that garbage was
frequently left overnight and over the weekend in the area he,
complainant, was assigned to clean and his supervisor did not comment;
3) on February 18, 1998, management defamed his character in an e-mail
to union officials; and
4) he was suspended from June 7, 1998 - June 11, 1998.
Complainant filed a formal complaint on July 27, 1998. The agency issued
a FAD dismissing claim (1) on the grounds that it was raised in a prior
complaint filed by the complainant. Claims (2) and (3) were dismissed
on the grounds of untimely counselor contact. The agency also dismissed
claims (2) and (3) on the grounds that complainant did not suffer a
personal loss or harm with respect to a term, condition, or privilege,
of his employment. Finally, claim (4) was dismissed on the grounds that,
on June 26, 1998, complainant's union representative raised this matter
in a grievance filed on complainant's behalf. This appeal followed.
Claim (1)
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall dismiss a
complaint that states the same claim that is pending before or has been
decided by the agency or Commission. The Commission has consistently
held that in order for a complaint to be dismissed under this provision,
the elements of the present complaint must be identical to the elements
of the prior complaint in time, place, incident and parties. See Malik
v.United States Postal Service, EEOC Request No. 05981172 (November 4,
1999).
In the present case, complainant indicated that he was discriminated
against when his duty hours were changed on August 4, 1996. The record
indicates, however, that the identical issue was raised by complainant
in a prior complaint, Complaint No. 98-0790, filed on August 27, 1997,
and was dismissed on March 31, 1998. Since a review of the file confirms
the agency's position, we find that the dismissal of claim (1) is hereby
AFFIRMED.
Claims (2) and (3)
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified as 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. Finally, our 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.
29 C.F.R. � 1614.105(a)(2).
With respect to claims (2) and (3), we find that complainant sought EEO
counseling in an untimely manner. Complainant did not indicate that he
was unaware of the agency's allegedly discriminatory behavior nor did
he maintain that he was unaware of the 45-day time limitation period.
In a letter, dated June 10, 1999, complainant stated that he contacted
an EEO counselor
in an untimely manner because �[o]f litigations going between EEO
and AFGE over jurisdiction of the case. I did not file with AFGE.
We were just talking and that's why it may have been.� We do not find
that complainant has offered an adequate justification for extending
the time limitation period.
Accordingly, the agency's decision to dismiss claims (2) and (3) for
untimely counselor contact was proper and it is AFFIRMED.<2>
Claim (4)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination
to be raised in a negotiated grievance procedure, a person wishing
to file a complaint or grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614 or
the negotiated grievance procedure, but not both. This subsection also
provides that an election to proceed under part 1614 is indicated by the
"filing of a written complaint," while an election to proceed under a
negotiated grievance procedure is indicated by the "filing of a timely
written grievance." An employee who files a grievance with an agency
whose negotiated agreement permits the acceptance of grievances which
allege discrimination may not thereafter file a complaint on the same
matter under part 1614 irrespective of whether the agency has informed
the individual of the need to elect or whether the grievance has raised
an issue of discrimination.
The record indicates that on June 26, 1998, prior to filing his formal
complaint on July 27, 1998, complainant's union representative requested
�a formal step 3 grievance meeting�under the agency's negotiated grievance
procedure. The subject of the grievance concerned complainant's 5-day
suspension in June 1998, which subsequently became the subject of claim
(4). We therefore find that complainant's filing of his written grievance
constituted an election of forum. 29 C.F.R. � 1614.301(a). Accordingly,
the agency's decision to dismiss claim (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:
05-26-00
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 after it was mailed. I certify
that this 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.
2Because of our decision above, we do not find it necessary to address
the agency's dismissal of claims (2) and (3) on the grounds that they
failed to state a claim.