0120110921
04-26-2012
Janice Blackwell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Janice Blackwell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110921
Agency No. 2004-0590-2010103944
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 2, 2010, dismissing her 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 Financial Accounts Technician at the Agency's Medical Center facility in Hampton, Virginia. On October 13, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity.
The Agency in its final decision framed Complainant's claims in the following fashion:
1. On July 21, 2009, she was informed that she was not selected for the position of Human Resources Specialist (Labor Relations), GS-0201-07/11, vacancy announcement number VISN6-09-051-231603VFP.
2. On January 19, 2010, she was informed that she was not selected for the position of Legal Assistant, GS-0986-07, vacancy announcement number 008-10vs.
3. On May 21, 2010, she was informed that she was not selected for the position of Legal Assistant, GS-098607, vacancy announcement number 093-10vs.
The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant contacted an EEO Counselor on July 9, 2010, which was more than 45 days after the alleged incidents.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency's dismissal of her complaint is improper. Regarding claim (3), Complainant asserts that she became aware of her nonselection in mid June 2010, and contacted an EEO Counselor on July 9, 2010; thus, claim (3) is timely. Complainant asserts that she became aware of her nonselection for the position set forth in claim (3) the second week in June 2010, when she reviewed a report. Complainant, in her brief asserts "although [C]omplainant developed a reasonable suspicion in February [2010] with regards to the prior [claims], she decided to at least apply for the [second] Legal Assistant position". Complainant asserts that claims (1) and (2) should be accepted as a continuing violation. Moreover, Complainant asserts that are numerous inaccuracies in the EEO Counselor's Report.
In response, the Agency requests that we affirm its final decision. Regarding Complainant's assertion that claims (1) and (2) should be accepted as timely under a continuing violation theory, the Agency asserted that Complainant's nonselection were discrete acts and thus claims (1) and (2) were untimely.
ANALYSIS AND FINDINGS
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.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Claim (3)-Legal Assistant Position, vacancy announcement number 093-10vs
The Commission finds that the Agency improperly dismissed claim (3) for untimely EEO Counselor contact. The Agency reasoned that Complainant's EEO contact is untimely because Complainant received a recruitment report via email on May 21, 2010 indicating her nonselection for the position in question but did not contact an EEO Counselor until July 9, 2010. In a supplement to her formal complaint, Complainant stated that "it was around the second week in June while reviewing a routine report when I discovered a selection was made." In her brief on appeal, Complainant further asserts that May 21, 2010 is the date a named agency official sent a 30 page recruitment report via email to various individuals, including Complainant. Complainant states, however, she did not read the report on May 21, 2010. Rather, Complainant states that she first reviewed the report in the second week of June and became aware of her nonselection for the position at issue.1 Where as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). We find that the Agency has not met this burden with respect to claim (3). Based on the foregoing, we find that Complainant timely contacted an EEO Counselor on July 9, 2010, within 45 days of mid-June 2010 when she read the report and learned of her nonselection.
Claims (1) and (2)
The Commission finds that the Agency properly dismissed claims (1) and (2). In a supplement to her formal complaint, Complainant stated regarding claim (2), "it wasn't until after [the selectee's death] and the Agency's disregard of the still current certificate did I suspect that they just did not want to hire me for that position or any position and would avoid such at all cost." Complainant asserts in her supplement to her formal complaint that the position was announced for a second time in February 2010. In addition, Complainant, in her brief on appeal, asserts that she developed a "reasonable suspicion" around February 2010, regarding claims (1) and (2). Even assuming arguendo that Complainant developed a reasonable suspicion in February 2010, regarding claims (1) and (2), her July 9, 2010 EEO contact is still untimely.
Complainant asserts that claims (1) and (2) are related to her nonselection set forth in claim (3) and should be deemed timely as a continuing violation. Complainant states that all three of the nonselections involved the same responsible management official. The Supreme Court has held that discrete acts such as hiring, firing, and promotions, that fall outside of the limitations period are not actionable and no recovery is available. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Even if the discrete activity is arguably related to other discriminatory acts that occur within the filing period, they are not actionable if untimely raised. Id. See also, EEOC Compliance Manual 915.003, Section 2: Threshold Issues, (rev. July 21, 2005). However, as the Court recognized an employee may use the prior acts as background evidence in support of a timely claim. Morgan at 113.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing claims (1) and (2). However, we REVERSE the Agency's final decision regarding claim (3) and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (claim (3)) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 26, 2012
Date
1 Complainant, on appeal, asserts that the Agency originated the date of July 8, 2010, which is listed in the EEO Counselor's Report. She states that she referenced that date only for consistency but that she set forth in her supplement to her formal complaint and has always maintained that she read the report in mid June. Complainant further asserts that the EEO Counselor's Report provides that she did not file the claim in a timely manner due to her union activities; Complainant denies making such a statement and asserts that this is just one of numerous inaccuracies in the EEO Counselor's Report.
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0120110921
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110921