0120072534
09-10-2007
Charlotte B. Johnson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Charlotte B. Johnson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072534
Agency No. 200H-0542-2006101498
Hearing No. 530-2007-00013X
DECISION
On May 4, 2007, complainant filed an appeal from the agency's April 24,
2007, final order concerning her equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant was
a former employee (Nurse Instructor and Staff Nurse) of the agency's
Coatesville VA Medical Center (CVAMC), and had been hired as Nurse
Instructor for the Brandywine School of Nursing (Brandywine). The CVAMC
and Brandywine had a cooperative agreement whereby Brandywine students
would be trained at the CVAMC. Upon learning that Brandywine planned
to use complainant as a Nurse Instructor as part of its program at
the CVAMC, on December 14, 2005, the agency informed Brandywine that
complainant was not permitted to act as a visiting instructor at the
CVAMC, due to a determination that had been made while complainant was
an agency employee that she was not fit to teach, for various reasons,
at the CVAMC. Pursuant to that determination, complainant had been
reassigned from her Nurse Instructor position to that of Staff Nurse
(the basis of her previous EEO complaint against the agency). She had
subsequently resigned from the agency, on July 9, 2005, and took the
position at Brandywine.
On March 24, 2006, complainant filed an EEO complaint alleging that she
was discriminated against in reprisal for prior protected EEO activity
arising under Title VII when the agency did not permit her access to
the facility as a Nursing Instructor for Brandywine.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The agency submitted a motion for a decision without
a hearing on January 16, 2007, and complainant submitted her objections
on February 7, 2007. The agency further responded to complainant's
objection on February 13, 2007. The AJ issued a decision without a
hearing on March 27, 2007. The AJ determined that complainant's initial
contact with the EEO Counselor was untimely, and consequently dismissed
complainant's complaint on the ground that complainant failed to timely
contact an EEO Counselor. The agency implemented the AJ's decision in
its final order.
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (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.
The AJ found that complainant's February 27, 2006 EEO Counselor contact
was beyond the 45 day time frame. Complainant argues that she did not
suspect discrimination until receipt of a February 15, 2006 letter
from the agency's Regional Counsel, that she would not be permitted
to teach on the CVAMC campus. A review of the record reveals that an
agency representative first verbally told Brandywine that complainant
would not be permitted on the CVAMC campus to teach on December 15, 2006.
In early January 2006, Brandywine attempted to clarify the situation with
the CVAMC. Also in early January, complainant's attorney sent a letter
to the CVAMC Director, asking for clarification of complainant's ability
to "perform the nursing instructor duties associated with her current
position while on [CVAMC] premises." His letter, dated January 8,
2006, states "I request that you provide me with a full explanation for
this abhorrent and retaliatory decision." [Italics added]. Therefore,
we conclude that complainant had reasonable suspicion by January 8,
2006, that the agency actions with respect to her ability to teach
Brandywine students while on the CVAMC campus were retaliatory in nature.
Using January 8, 2006 as the time at which the 45 days began to run,
complainant would have had to contact an EEO Counselor by February 22,
2006. As she did not contact an EEO Counselor until February 27, 2006,
her contact is therefore untimely.
We therefore affirm the agency's final order, implementing the AJ's
dismissal of complainant's complaint for untimely EEO Counselor contact
under 29 C.F.R. � 1614.107(a)(2).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
9-10-07
__________________
Date
2
0120072534
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072534