0120132378
04-07-2015
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120132378
Hearing No. 531-2012-00315X
Agency No. 54-2011-02074
DECISION
On June 4, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from the Agency's final order dated May 7, 2013, which adopted the decision of an Equal Employment Opportunity Administrative Judge (AJ) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Scientist, ZP-1301-III, at the Agency's National Environmental Satellite, Data and Information Service (NESDIS), Commercial Remote Sensing Regulatory Affairs Office, in Silver Spring, Maryland.
On October 28, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African-American) and reprisal for prior protected EEO activity under Title VII when he was not selected for one of two slots for the position of Interdisciplinary, ZP-1301/0801-III (DE), promotion potential ZP-IV, in NESDIS, Office of Systems Development (OSD). The slots were simultaneously posted both in vacancy announcements NESDIS-OSD-2010-0006 and NESDIS-OSD-0008. The slot in the ZP-1301 occupational series - Physical Scientist - was located in Suitland, Maryland, and the slot in the ZP-0801 occupational series - General Engineer - was located in Greenbelt, Maryland.
Following an Agency investigation, Complainant requested a hearing before an EEOC AJ. The Agency filed a motion to dismiss on the grounds that Complainant failed to timely initiate EEO counseling. He initiated EEO counseling on July 19, 2011. See Agency's Motion to Dismiss, Exh. F - Amendment to the EEO Counselor's Report. Thereafter, the AJ held a hearing on the Agency's motion.
The above vacancy announcements closed on March 16, 2010. Therein the Agency informed applicants that they would receive email notifications that their online applications had been received, and could check the status of their applications through their USAJOBS accounts.
At the March 2013, hearing, Complainant testified that when he was interviewed on approximately April 23, 2010, the selecting official said he would be advised by Human Resources by email on whether he was selected. Complainant testified that he never got such an email. HT, 44 - 45. The selecting official retired in September 2010, and declined to participate in the hearing.
Complainant stated his 2010 interview went well, and the selecting official talked as though he had the job. Report of Investigation (ROI), Exh. 8, at 2. Complainant testified that about a week after his interview his former supervisor told him she was contacted by the selecting official and she gave him some information. HT 66 - 67. Complainant believed this was an unfavorable reference because of his previous EEO activity against the former supervisor. ROI, Exh. 5, at 4, & Exh. 8, at 3-4,
Complainant testified that at one point about a month after his interview, he checked his USAJOBS account for his status.
The selectee (hereinafter referred to as the selectee) for the Suitland slot was chosen on May 19, 2010, effective June 6, 2010. Previously, the selectee worked for contractors serving the Agency from 2005 to 2007. No one was selected for the Greenbelt slot. Instead, a successor position with modified duties was later advertised, with another person being chosen in September 2010.
Complainant knew the selectee when he was a contractor. They did not work together, but had informal conversations in the hallway. Complainant testified they talked about their career paths and growth. Soon after the selectee started in OSD, a co-worker of Complainant informed him the selectee was now in OSD. About a month after the selectee started, Complainant called him. The selectee testified that Complainant reminded him how they knew each other and said he knew the selectee obtained a new position. Hearing transcript (HT), 27, 30. Complainant asked the selectee about his career path - where he came from, what he did leading up to OSD, and his duties and responsibilities in OSD. The selectee testified that he specifically remembered that either he or Complainant identified the selecting official who chose him to work in OSD. HT, 25. Complainant countered that the selectee did not identify who interviewed him. HT, 52. Within the next couple of months Complainant called the selectee one or two more times and asked the same type of questions. Complainant testified that in their conversations the selectee did not say what vacancy announcement he applied under, did not identify the position he was occupying, and he did not know then the selectee was in the job for which he applied.
At some point USAJOBS updated Complainant's status to indicate he was not selected. It indicated this change in status occurred on July 30, 2010.
Complainant stated that Human Resources never advised him of the status of his application, it was well aware of his EEO claims, and he knew quite a few employees who have applied for jobs and never heard back from anyone - the same jobs kept reposting for months and months. Complainant wrote that knowing this, he called OSD Official 1, who sat in on the interview with the selecting official, to ask about status. ROI, Exh. 8, at 2. Complainant testified that he made the call in June or July 2011, and Official 1 advised him the Suitland slot had been filled, but the Greenbelt slot was still vacant.1 HT, 43, 58. Official 1 did not recall the timing of their conversation.
Following the hearing, the AJ found that Complainant failed to timely initiate EEO counseling because he did not exercise due diligence in learning he was not selected. The AJ found that a month after he was interviewed Complainant checked USAJOBS, found nothing, and did not check again, but he could have done this on a regular basis. The AJ found that Complainant learned from a co-worker that the selectee was in Suitland in the area Complainant applied and wanted to be in, and spoke to the selectee. The AJ found that while, according to Complainant, the selectee did not speak about the specific position he was in, and although perhaps this was not enough by itself to raise a reasonable suspicion of discrimination, it was enough to prompt an inquiry. Instead, Complainant waited until at least June 2011.
Regarding the Greenbelt job, the AJ found Complainant said Official 1 advised him the job was not filled. The AJ found the job was filled in September 2010. The AJ found that while he was not going to say this meant Complainant's conversation with Official 1 occurred before September 2010, if Complainant made an inquiry he would have learned the job was not filled under the announcement for which he applied.
In support of his finding, the AJ cited, in part, Allen v. EEOC, EEOC Appeal No. 0120072557 (Aug. 3, 2009). In Allen, the complainant contended, in part, that in May 2005, he applied for the position of Equal Employment Specialist, pursuant to a vacancy announcement which was open from April 26, 2005, through June 9, 2005. The agency averred there was no indication the complainant applied for this position. The complainant contended the agency deliberately did not notify him of his non-selection. The complainant did not initiate EEO counseling until October 20, 2006. The Commission found that assuming the complainant actually applied for the position, it took him 16 months to contact the Agency to inquire about the status thereof. The Commission ruled a complainant must act with due diligence in the pursuit of a claim or the doctrine of laches may be applied. It found that the complainant failed to provide any explanation to justify his delay, and failed to act with reasonable diligence regarding this non-selection.
On appeal, Complainant argues that he did not form a reasonable suspicion of discrimination until he spoke with Official 1 in June 2011. He argues that he exercised due diligence by checking his email.
In opposition to the appeal, the Agency argues that the AJ's decision should be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Following a hearing, the AJ declined to find that Complainant formed a reasonable suspicion of discrimination prior to talking to Official 1. We view this as a finding that he did not form a reasonable suspicion of discrimination until then. This finding of fact is supported by substantial evidence - Complainant's testimony.
The Agency dismissed Complainant's complaint on the grounds that he did not exercise due diligence. Here, Complainant was interviewed for the job in April 2010. The alleged discriminatory events occurred when the selectee was placed in Suitland in June 2010, and the Agency chose not to fill the Greenbelt job with Complainant, presumably around the same time. Complainant initiated contact with an EEO counselor on July 19, 2011, about 13 months after the alleged discriminatory events. There is no bright line in terms of how long a Complainant can wait before laches applies, but the fact that the time period here is 13 months calls for close scrutiny in making a determination to apply laches.
In Dyson v. Tennessee Valley Authority, EEOC Appeal No. 01A62392 (Aug. 22, 2006), the EEOC affirmed the agency's dismissal of 15 non-selection claims for untimely EEO counselor contact where the complainant was not selected for vacancy announcements that closed from May 2000 to June 18, 2004. The complainant initiated EEO counseling on November 29, 2005. The EEOC found that although there was not sufficient evidence concerning when the complainant was notified of his non-selections, laches applied because he did not act with due diligence in initiating EEO contact. From the closing date of the most recent vacancy announcement in Dyson, the complainant waited a little over 17 months to initiate EEO counseling. From the closing date of the vacancy announcement in the case before us, Complainant waited 16 months before initiating EEO counseling.
We agree with the AJ that Complainant failed to act with due diligence in pursuing his EEO claim. Complainant had a USAJOBS account, and could have checked on his status anytime, or checked in some other fashion. While he was told by the selecting official that Human Resources would notify him of his status by email, Complainant wrote he knew quite a few people who applied for jobs and never heard back from anyone. Complainant also suggested that he suspected reprisal in the selection process within a week after his interview because he his interview went well but he believed his former supervisor retaliatorily gave an unfavorable reference. Complainant was also aware about a month after he would have been brought on that the selectee - a Physical Scientist - was hired in the area he would have worked, albeit he did not know it was for the vacancy for which he applied. Given all this, we agree with the finding of the AJ that Complainant failed to act with due diligence in not checking on his status, and hence not pursing his EEO claim.
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 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 7, 2015
__________________
Date
1 In an August 2011 email to the EEO office, Complainant wrote that on or about June 20, 2011, he learned that he was not selected for the position. Shortly thereafter, he informed the EEO office that he learned of this on July 10, 2011.
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0120132378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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