0120141942
10-10-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120141942
Agency No. 200P-0341-2014100015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 12, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency's Salt Lake City "VARO" facility, in Salt Lake City, Utah.
On December 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and age (47) when, effective August 11, 2013, he was demoted from a Vocational Rehabilitation Counselor to a Veterans Service Representative.
The record shows that, on August 28, 2013, Complainant filed a grievance with regard to his demotion. Complainant initiated EEO contact on October 1, 2013. Complainant challenges the investigation of his complaint. His complaint identifies September 7, 2013, as the date of the occurrence. He alleges that the Agency applied different standards of discipline for male and female employees.
The Agency dismissed the complaint on two grounds: 1) prior adjudication of the claims, due to Complainant's prior election of the negotiated grievance to pursue his claims, and 2) untimely EEO contact. The Agency concluded that the Complainant's claims are "part and parcel of the same transaction that resulted in the demotion which was adjudicated pursuant to the negotiated grievance process long before [Complainant] pursued the instant EEO complaint."
Next, the Agency reasoned that Complainant's demotion was effective on August 11, 2013, but Complainant did not initiate contact with an EEO counselor until October 1, 2013, which was beyond the 45-day time limit. The Agency did not find Complainant's explanation to be persuasive. (Complainant stated that the reason for his delay was the union was attempting to mediate the demotion before the final decision was made by management.) The Agency stated that it did not find Complainant contentions concerning the Union to be compelling enough to warrant a waiver and dismissed the complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Prior Election
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination. In the instant case, the record shows that Complainant filed a grievance concerning the demotion that is the basis of the subject disparate treatment claims.
On appeal, Complainant refers to the demotion documents and incidents going back to 2012. Complainant argues, nevertheless, that the allegations that he raises with this complaint are not "part and parcel of the same transaction" that he raised previously. He maintains his claim pertains to an unspecified incident that occurred on September 7, 2013, which is outside of the grieved claims. He states that the investigative process was not done properly. Although Complainant argues a new disparate treatment theory, we find his claims are the same claims that were presented during the grievance process or that could have been raised in that process.
As the record indicates that Complainant elected to pursue the matter within the grievance procedure, we find that the Agency properly dismissed his claim challenging the demotion and related issues pursuant to 29 C.F.R. � 1614.107(a)(4).
Timeliness of Claims
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.
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.
The record discloses that the actual alleged discriminatory event at issue occurred on August 11, 2013, but Complainant did not initiate contact with an EEO Counselor until October 1, 2013, which is beyond the forty-five (45) day limitation period.
With regard to the untimeliness of his EEO contact, Complainant acknowledges that he was aware of the time limits and that his contact was untimely. He argues that the time limit should be waived, because he was trying to resolve the process informally through his union.
We find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. For these reasons, we find that Complainant's complaint was also properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
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
October 10, 2014
__________________
Date
2
0120141942
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141942