Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120130438 (E.E.O.C. Apr. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130438

Hearing No. 430-2012-00075X

Agency No. 2004-0659-2011103136

DECISION
Complainant filed an appeal with this Commission from the Agency's final order dated
October 9, 2012, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND
On June 25, 2011, Complainant filed a formal complaint dated June 16, 2011, alleging that the
Agency subjected him to discrimination on the bases of race (African-American), disability,
and in reprisal for prior protected EEO activity. The Agency defined Complainant’s claims as
alleging:

1. Complainant was discriminated against on the bases of race and disability when from
March 17, 2010, through March 24, 2011, Complainant was detailed from his GS-9
grade level position to perform duties allegedly at the GS-13 level in Logistics Services.

2. Complainant was discriminated against in reprisal for prior EEO activity when on
September 29, 2010, Complainant received a memorandum from the facility Associate
Director that stated he did not meet eligibility requirements for the temporary
promotion in logistics and would remain on detail.

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3. Complainant was discriminated against in reprisal for prior EEO activity when on
March 10, 2011, he was notified by his facility Human Resource Service, that he did
not meet the time in grade and experience requirements to qualify for the position of
Supervisory Inventory Management Specialist, GS-2010-13, Vacancy Announcement
No. 10-342.

On August 8, 2011, the Agency issued a final decision dismissing issues (2) and (3) pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed
Complainant’s basis of reprisal discrimination pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim.

On September 8, 2011, the Agency rescinded its final decision. The Agency redefined
Complainant’s complaint as alleging discrimination based on race and disability when:

1. From March 16, 2010, through December 5, 2010, Complainant was detailed from his
GS-9 position in Patient Care Services, to the position of Interim Chief, Logistics
Service in an unclassified set of duties without the benefit of temporary promotion.

2. On September 29, 2010, Complainant received a memorandum from the Facility
Associate Director that stated he was detailed to a set of unclassified duties, and did not
meet eligibility requirements for temporary promotion within Logistics Service.

3. On November 26, 2010, the Associate Medical Center Director denied Complainant’s
request on November 24, 2010, to return to his prior position in Patient Care Service.

4. From December 5, 2010, through March 23, 2011, Complainant was temporarily
detailed to the position of Supervisory Inventory Management Specialist, GS-11-NTE
120 days without temporary promotion.

5. On March 24, 2011, Complainant received written notice that he was rated not
qualified for the position of Supervisory Inventory Management Specialist, GS-2010-
13, Vacancy Announcement No. 10-342.

The Agency dismissed issues (1), (2), and (3) for untimely EEO Counselor contact. The
Agency dismissed issue (4) for failure to state a claim. The Agency accepted issue (5) for
processing.

At the conclusion of the investigation on the accepted claim, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing.

On March 15, 2012, Complainant filed Complainant’s Identification and Comments on
Dismissed Claims requesting the AJ review his claims concerning his detail to the position of
Acting Chief of Logistics and the basis of retaliation which were both dismissed by the Agency
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during the investigation. On May 8, 2012, the AJ issued an Order reinstating reprisal as a
basis in Complainant’s complaint and upholding the Agency’s dismissal of his claims regarding
his detail to the position of Acting Chief of Logistics.

On July 5, 2012, the Agency filed Agency’s Motion to Dismiss Complainant’s complaint on
the grounds of untimely EEO Counselor contact. On September 25, 2012, over Complainant’s
objections, the AJ granted the Agency’s Motion to Dismiss. In her decision, the AJ noted that
on December 1, 2010, the Agency issued vacancy announcement number 10-342 for a
Supervisory Inventory Management (SIM) Specialist, GS-2010-13. The AJ noted Complainant
applied for the position around December 7, 2010. Human Resources Specialist (HRS 1) was
responsible for qualifying the applicants.

The AJ stated that sometime after he applied, Complainant went to see HRS 1 who told him
she had determined that he was not qualified for the SIM Specialist position because he did not
meet the “specialized experience” requirements identified in the vacancy announcement.
Complainant told HRS 1 that the Supervisory Human Resources Specialist (Supervisory HRS)
advised him that he was qualified for the position based on his Veterans status. HRS 1 said
she would check with the Supervisory HRS. The Supervisory HRS told HRS 1 that the
information she had given Complainant did not indicate that he met the minimum qualifications
for the SIM Specialist position. HRS 1 later told Complainant what the Supervisory HRS had
said. Complainant took his application from HRS 1 (but Complainant did not withdraw his
application).

On January 13, 2011, HRS 1 completed the record of minimum qualification forms for the
SIM Specialist position. HRS 1 used an application Complainant had submitted for another
vacancy announcement. HRS 1 determined Complainant was not qualified because he did not
have “specialized experience.” HRS 1 determined the other three applicants were qualified
and they were interviewed in January 2011.

On January 18, 2011, Complainant sent an electronic mail message to HRS 1 asking why he
was found not to be qualified. On January 19, 2010, Complainant began an electronic mail
exchange with the Supervisory HRS regarding the fact that he had been found not qualified.
The Supervisory HRS referred Complainant to the Chief of Human Resources and to the
Assistant Chief of Human Resources.

On January 21, 2011, Complainant sent electronic mail messages to the Chief of HR and the
Assistant Chief of HR asking for the reason he was not found qualified. The Assistant Chief
referred Complainant to HRS 1. Complainant responded that he had already spoken to HRS 1.

On January 24, 2011, Complainant sent an electronic mail message to HRS 1 with a copy to
the Supervisory HRS asking for the reason that he was not found qualified and for the name of
the individual who made the determination. HRS 1 responded that she had already discussed
the issue with Complainant, but she stated she would meet with him to make sure they were
both clear on the details.
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On February 7, 2011, Complainant sent an electronic mail message to HRS 1 reminding her
that he needed a document indicating why he was found not qualified for the SIM Specialist
position. Complainant reiterated his request through electronic mail messages to HRS 1 on
February 11, 2011, and February 18, 2011. On March 8, 2011, HRS 1 sent Complainant an
electronic mail message indicating the document was ready. The AJ noted the memorandum
dated February 22, 2011, indicated that Complainant was not qualified because he did not meet
the experience requirements. The AJ found that on March 10, 2011, Complainant sent a copy
of the memorandum to Person A, a representative from the Office of his Congresswoman.

The AJ noted that on March 24, 2011, Complainant received another memorandum indicating
that he was not qualified for the SIM Specialist position. This memorandum indicated that
Complainant was not qualified because he did not meet the experience requirements and time
in grade requirements.

The AJ found Complainant began to question the Agency about its failure to select him in
January 2011. The AJ noted the record showed Complainant knew through discussions with
HRS 1 that she was not going to find him qualified because of a lack of specialized experience.
The AJ found the electronic mail message exchanges with HR show that Complainant was
suspicious of the Agency’s explanations for not qualifying him. The AJ noted that
Complainant stated that he was aware a White applicant was being interviewed for the position
because he saw the applicant on the day of his interview. The AJ also noted that Complainant
received the February 22, 2011 memorandum indicating he was found not qualified around
March 8, 2011. The AJ noted that during EEO Counseling, Complainant provided a copy of
an electronic mail message showing that he sent a copy of that memorandum to the office of
his Congresswoman on March 10, 2011. The AJ determined that Complainant had a
reasonable suspicion of discrimination on March 10, 2011, and should have contacted an EEO
Counselor within 45 days of that date in order to be timely. The AJ found Complainant’s May
4, 2011 EEO Counselor contact was untimely.

On appeal, Complainant submits a brief dated November 1, 2012, in which he stated that on
March 10, 2011, he received a non-qualification letter stating that he was not qualified because
of lack of experience and not enough time in grade.1

Complainant states that he scanned the
document and sent it to his Congresswoman. He states that “[s]trangely the document was
dated March 24, 2011.” He states that he believed he was going to receive the letter on that
date, as that was the date that his temporary promotion was going to end. Complainant argues
that although he received the letter on March 10, 2011, the letter was dated March 24, 2011.
Thus, Complainant alleges that March 24, 2011, was the effective date for the non-
qualification letter, and he claims he timely contacted an EEO Counselor within 45 days of
March 24, 2011.

1 In the same brief, Complainant also states that he received the memorandum from the Agency
informing him that he was not qualified on March 8, 2011.
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Complainant’s attorney also submits a brief dated November 23, 2012, stating that
Complainant did not have a reasonable suspicion of discrimination until the decision to
disqualify him was made final on March 24, 2011. The brief notes that prior to March 10,
2011, HRS 1 and the Supervisory HRS told Complainant he was qualified for the position.
The brief states that on March 10, 2011, HRS 1 told Complainant that he was not qualified for
the position at issue. Complainant’s attorney states that Complainant believed HRS 1 was
mistaken and he asked her to go back and check again. Complainant claims that HRS 1 agreed
to recheck the matter. Complainant states that he also asked his Congresswoman to check the
matter because he believed that HRS 1 had made a mistake. Complainant argues that it was
not until March 24, 2011, the effective date of the Agency’s final disqualification that he
reasonably suspected disqualification.

ANALYSIS AND FINDINGS
At the outset, we note that Complainant does not challenge the Agency's dismissal of claims
(1) – (4). The Commission has the discretion to review only those issues specifically raised in
an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
9-10 (November 9, 1999). Accordingly, we will not address the dismissal of Complainant’s
claims (1) – (4) in this decision. Moreover, we note Complainant does not challenge the
Agency’s definition of the issue in his complaint.

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. Dep't of the Navy

, EEOC Request No. 05970852 (Feb. 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.
Upon review, we find the alleged discriminatory event occurred at the latest on March 10,
2011, when Complainant received the memorandum from the Agency informing him that he
was not qualified for the SIM Specialist position under Vacancy Announcement 10-342.
Complainant’s initial contact with an EEO Counselor was on May 4, 2011. With regard to his
contention that he did not reasonably suspect discrimination until March 24 2011, we note
Complainant has not stated why he began to reasonably suspect discrimination on that date.
Rather, we note the record contains a March 10, 2011 electronic mail message showing that
Complainant sent a copy of the memorandum to his Congresswoman’s Office. In his
electronic mail message he stated that after requesting the letter two months ago, he finally
received his non-qualification letter. He stated “[t]here are some issues going on/being
covered up in this department. . . Hopefully you can get the [attached] document looked at for
validity. It definitely does not smell good around here.” We find Complainant had or should
have had a reasonable suspicion of discrimination regarding his claim at the latest on March
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10, 2011. Upon review, we find Complainant failed to present persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO Counselor contact.

CONCLUSION
Accordingly, the Agency’s final order 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
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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

Date
April 4, 2014