0120142453
10-23-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142453
Agency No. 2001--0673-2014101573
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 28, 2014, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Telephone Operator, GS- 4 at the Agency's VAMC Tampa, Florida facility.
On February 6, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On May 14, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race and sex when:
On December 1, 2013, he was not selected for the position of Lead Telephone Operator.
On May 28, 2014, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant was aware of the selection of the selectee on December 1, 2013, which the Agency found was the effective date of the personnel action. The Agency further found that the selectee started to work in the same section where Complainant worked, starting December 2, 2013. The Agency concluded that Complainant did not contact an EEO Counselor on that matter until February 6, 2014, beyond the 45-day time limit to contact a Counselor.
On appeal, Complainant asserts that the effective date of the personnel action is not dispositive in this particular instance. Specifically, Complainant asserts that when he saw the selectee in early December 2013, he had no knowledge "of what took place at HR [Human Resources] or at the interview process." Complainant asserts further that on December 26, 2013, the selectee was brought to Complainant to be trained on "80% of the job [and] this is when I discovered that [the selectee] had no idea as to what we did. . . "
ANALYSIS AND FINDINGS
EEOC Regulations 29 C.F.R. � 1614 107(a) (2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 1614.105. Section 1614.105 (a)(1) provides that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action within 45 days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on December 1, 2013. Complainant did not initiate contact with an EEO Counselor until February 6, 2014, which is beyond the forty-five (45) day limitation period. We have considered Complainant's appellate argument as referenced above. However, we are not persuaded by his assertion that he had, or should have had, a reasonable suspicion of unlawful employment discrimination only on December 26, 2013. In summary, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing the formal complaint for the reason discussed herein is AFFIRMED.
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 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), 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
October 23, 2014
__________________
Date
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 the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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