0120120855
12-05-2012
Daniel S. Saltzman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Daniel S. Saltzman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120855
Hearing No. 490-2009-00207X
Agency No. 200L-0626-2009101208
DECISION
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. For the reasons set forth, we AFFIRM the Agency's decision, dismissing the complaint.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Housekeeping Aide, WG-2, at the Tennessee Valley Healthcare System, Environmental Management Service in Murfreesboro, Tennessee. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged that he was subjected to discrimination on the basis of disability when he was denied light duty for the period October 18, 2008 through November 24, 2008, when he was sent home from work and placed in a non-pay status.
On November 8, 2011, an EEOC Administrative Judge (AJ) issued an order of dismissal for untimely counselor contact. The AJ dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor Contact.
On November 30, 2011, the Agency issued a decision dismissing the complaint. The Agency fully implemented the AJ's decision. Complainant now appeals from that decision. On appeal, Complainant argued that he had met all of the procedural deadlines for his case.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of discrimination to be brought to the attention of the EEO Counselor within forty-five days of the date of the claimed discriminatory matter, or, in the case of a personnel action, within forty-five days of the effective date of the action. The Commission's regulations, however, provide that the time limit will be extended when the complainant shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
In an affidavit from Complainant dated July 28, 2009, Complainant admitted that, on October 21, 2008, he was notified by his supervisor that the Agency had accommodated him long enough, and he was told to go home, get surgery on his knee, and to get a letter from his doctor that he could return to work and that he could come back. Complainant reiterated that he began calling his supervisor on November 5, 2008, about returning to work on light duty, and that on November 7, 2008, he finally talked to his supervisor who advised him that the Agency was not ready to have him come back to work yet. Complainant argued that his contact with the EEO Counselor was timely because he placed the call to the EEO Counselor on January 7, 2009, the forty-fifth day after he returned to work.
Upon review, the Commission finds Complainant should have reasonably suspected discrimination by November 7, 2008, at the latest. Complainant did not initiate contact with an EEO Counselor until January 7, 2009, which is beyond the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
December 5, 2012
__________________
Date
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0120120855
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120855