0120120587
04-25-2012
Garfield Norris, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Garfield Norris,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120587
Agency No. 2003-0580-2011103697
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 14, 2011, 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 Patient Relations Assistant at the Agency's Michael E. DeBakey VA Medical Center, in Houston, Texas. On June 13, 2011, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful.
On August 19, 2011, Complainant filed the instant formal complaint. Therein alleging that the Agency subjected him to discrimination on the bases of race and color when:
1. Effective April 22, 2011, he was demoted from a Supervisory Administrative Officer, GS-0341-9 to a Patient Relations Assistant, GS-0303-7 during the probationary period; and
2. Effective April 22, 2011, he was reassigned from the Richmond Outpatient Clinic in Richmond, Texas as a Supervisory Administrative Officer, GS-0341-9 to a Patient Relations Assistant, GS-0303-7, at the Michael E. DeBakey VA Medical Center in Houston, Texas, during the probationary period.
On October 14, 2011, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency determined that Complainant's initial EEO Counselor contact on June 13, 2011, was beyond the 45-day time limit set by the regulations.
CONTENTIONS ON APPEAL
On appeal Complainant claims that only on May 10, 2011, when he met the Chief of Medicine, he became aware that the real reason for his demotion was discrimination based on his race and color, and he therefore timely contacted the EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614. 107(a) (2) states that an agency shall dismiss a complaint that fails to comply with applicable time limits contained in �� 1614. 105, 1614.106, and 1614.204 (c). Section 1614.105 (a) (1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on April 22, 2011, but that Complainant did not initiate contact with an EEO Counselor until June 13, 2011, which is beyond the forty-five (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. Complainant asserts that it was not until May 10, 2011, that he developed a reasonable suspicion of unlawful employment discrimination regarding the subject personnel actions, upon meeting with an Agency official. However, the Commission cannot discern any reason advanced by Complainant how the May 10, 2011 meeting precipitated a reasonable suspicion of discrimination as opposed to the issuance of the personnel actions on April 22, 2011.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO contact 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
April 25, 2012
__________________
Date
2
0120120587
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120587