0120121314
06-12-2012
Abdul Kazemy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Abdul Kazemy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121314
Agency No. 200P-0648-2011104142
DECISION
Complainant filed a timely appeal with this Commission from the Agency's December 28, 2011 decision, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. We AFFIRM the final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician at the Agency's VA Medical Center Salem Community Based Outpatient Clinic facility in Portland, Oregon.
On July 19, 2011, Complainant contacted an EEO counselor.1 On October 14, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Not Specified), religion (Muslim), and age (62). In his 12-page complaint, he alleged 20 incidents of harassment that allegedly occurred from November 1, 2008 and May 6, 2011. The incidents can be characterized as violations of the Privacy Act, whistle-blowing retaliation, delays in honoring Complainant's requests for restoration of annual leave, alleged overbooking of patients assignments, not being notified of a vacancy, threatening or patronizing letters from management, rating dissatisfaction, negative comments on his proficiency report in front of co-workers, relocation of his papers, denied administrative leave and, on May 6, 2011, denied union representation.
The Agency dismissed the complaint for two reasons: lack of jurisdiction and untimely EEO contact. The Agency concluded that the alleged violations of the Privacy Act and whistle-blowing allegations were not within EEOC's jurisdiction.
With regard to timeliness, the Agency reasoned that anything occurring prior to June 4, 2011 was untimely raised because it was beyond the 45 day time limit for initial EEO contact.
The record discloses that the most recent alleged discriminatory event occurred between on May 6, 2011, but Complainant did not initiate contact with an EEO Counselor until July 19, 2011, which is beyond the forty-five (45) day limitation period. Complainant requested to amend his complaint on December 15, 2011 to add two additional incidents in which comments were made in front of staff on August 31 and September 5, 2011. The Agency did not grant the request to amend the complaint inasmuch as it dismissed the initial complaint. The Agency stated that the two amended claims would be referred to counseling.
The record indicates that Complainant has attended EEO related training, which included information on the 45 day time limit for EEO contact.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency erred in dismissing because he is asserting a hostile environment claim and that his June 4, 2011, contact was timely for the alleged event that occurred on May 6, 2011.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five 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 fact" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05950852 (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 also provide that the Agency or the Commission shall extend the time limits when the individual was not notified of the time limits or was otherwise not aware of them.
In this case, the record shows that Complainant was aware of the time limitations and the Agency notified Complainant on June 4, 2011 of the procedure required to initiate EEO contact. The record shows that Complainant did not initiate contact until July 19, 2011.
Further, the record shows that the Agency provided Complainant training which explained the filing requirements. The record also shows that the facility had posted EEO posters in high traffic areas. We find that the Agency met its burden to support a reasoned determination as to timeliness.
In addition, Complainant conceded in his formal complaint that the most recent incident (which occurred on May 6, 2011) pertained to the Agency's denial of Complainant's request for union representation at a meeting. That is a discrete and new allegation, which is distinct from the series of incidents that Complainant alleged occurred prior to that date.
With regard to the untimely EEO contact, we find that Complainant did not initiate timely contact with an EEO Counselor and that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Further, it is well settled that engaging in whistle-blowing is not protected EEO activity. See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19, 1996) (finding that participation in grievance process is protected only if claims of discrimination were raised therein). Therefore, we find that the allegations of reprisal for whistle-blowing as a basis for Complainant's complaint were properly dismissed.
Finally, the Privacy Act, 5 U.S.C. � 552(g)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the provisions of the Privacy Act. Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore we find that the Agency's decision to reject Complainant's claim concerning a violation of the Privacy Act was proper.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 12, 2012
__________________
Date
1 Complainant asserts that he informed the Agency on June 6, 2011 that he wanted to file an informal complaint. The record indicates that on that same date, the Agency's EEO Office replied to Complainant, advising Complainant that he needed to contact the Office of Resolution Management, 1-888-737-3361, to file an EEO discrimination complaint.
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0120121314
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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