[Redacted], Jeramy R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2022000558 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeramy R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000558 Agency No. 200306712021104677 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's November 2, 2021 dismissal of his complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as the Assistant Chief of Voluntary Services, GS-12, for the South Texas Veterans Health Care System, at the Audie Murphy VA Hospital in San Antonio, Texas. On September 16, 2021, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the bases of race (Black), disability, and reprisal for prior protected EEO activity when, on January 12, 2021, he received written notification that he was not selected for the position of Chief of Voluntary Service, GS-13, Vacancy Announcement No. CAZM1097978221DMK (“VS Chief”). 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000558 2 On January 12, 2021, Complainant filed a Freedom of Information Act (“FOIA”) request pertaining to the selection process for the VS Chief position, including the qualifications, interview notes and interview scores for the selectee, and the alternate candidate (Complainant). The FOIA request also sought the race, gender, and age of the selectee and the members of the selection panel and extensive information on the gender, race, and age make-up of numerous positions within the service. On January 19, 2021, Complainant updated his request to also include information regarding the selectee’s disability status. On March 25, 2021, Complainant received a response, which contained blank pages and appeared incomplete, as it lacked the requested demographic data, and elements of the VS Chief selection process, including any criteria or guidance given to the selection panel members. Complainant appealed, with the Agency’s Office of General Counsel (“OGC”). On May 6, 2021, the OGC issued a final decision partially granting Complainant’s FOIA appeal, while still denying a significant portion of his request. Complainant states that decision demonstrated the Agency’s lack of transparency regarding the selection process for the VS Chief position and caused him to suspect that his nonselection was due to discrimination. Complainant initiated the instant EEO complaint on June 1, 2021.2 The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2), provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits in §1614.105. Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action (e.g. nonselection), within 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 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. Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012) emphasis added. 2 Although the Agency identifies July 13, 2021, as the date of initial contact, Complainant provides a certified mail receipt establishing that he mistakenly contacted the EEO Office within the Agency’s Central Office in Washington, DC, on June 1, 2021, which, along with his subsequent efforts to further this complaint, is sufficient evidence of EEO contact. See Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (EEO counselor contact is satisfied when a complainant contacts an agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process). 2022000558 3 Here, the alleged discriminatory event occurred on January 12, 2021, yet Complainant did not initiate EEO contact until June 1, 2021, well past the 45-day limitation period. Reasonable Suspicion On appeal, Complainant asserts that his complaint is timely because he did not reasonably suspect discrimination until May 6, 2021. However, we conclude that reasonable suspicion of discrimination existed no later than January 12, 2021. Complainant had already been verbally notified of the selectee’s identity, and, by virtue of his position, Complainant would have interacted professionally with the selectee long before May 6, 2021. See Swanigan v. United States Postal Serv., EEOC Appeal No. 0120033469 (Mar. 31, 2004) (where the alleged discriminatory event is nonselection, reasonable suspicion of discrimination is often not triggered until the complainant learns the identity of the selectee) citation omitted. On appeal, and in his formal EEO complaint, Complainant alleges that the selecting official, who he worked under for years, exhibited a “history of showing bias toward persons in my protected class” and provides examples predating his nonselection, such as a “very noticeable” dearth of non-white employees holding positions higher than GS-9 within in the selecting official’s unit. In this context, Complainant’s January 12 and 19, 2021 FOIA requests, given their content, essentially confirm that he suspected discrimination, at the time of his nonselection. While it may be relevant to his claim, the OGC’s May 6, 2021 FOIA Decision was not necessary to trigger reasonable suspicion of discrimination. Complainant’s claim is untimely pursuant to 29 C.F.R. § 1614.107(a)(2). Allegation of Being Misled Complainant also argues that an extension of the 45-day limitation period is warranted here because the Agency intentionally misled him. Specifically, Complainant reasons that he missed the deadline to contact an EEO counselor because he relied on the Chief of Human Resources (“HR”), who advised him to gather all of the facts before pursuing an investigation. We first note that the Commission has consistently held that that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). This holds true for complainants who delay contacting an EEO counselor until they have gathered supporting evidence through the FOIA system. Valencia L. v. R.R. Retirement Bd., EEOC Appeal No. 2019001765 (Sept. 18, 2019), Mitchell K. v. Dep’t of the Navy, EEOC Appeal No. 2019002360 (Apr. 30, 2019) (noting that the complainant initiated the FOIA request because he reasonably suspected discrimination). Complainant’s bald assertions that he relied on HR’s erroneous advice to his detriment, and that HR and other Agency officials failed to direct his complaint to the EEO process, are insufficient, on their own, to give rise to provide adequate justification to excuse Complainant’s untimely EEO contact. See Tianna M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021004600 (Jan. 2022000558 4 11, 2022) citing Bixler v. Dep’t of the Air Force, EEOC Appeal No. 01941332 (March 25, 1994) (the mere assertion by appellant that an EEO Counselor told him that he could not file an EEO complaint is not enough to support such a contention). Additionally, Complainant does not dispute that he was placed on notice of the EEO time frames through training and agency postings located throughout the Medical Center. Ultimately, nothing in the record indicates that the Agency engaged in misconduct by intentionally inducing Complainant’s untimely EEO contact. The record reveals that Complainant initially experienced extreme confusion regarding initiating his EEO complaint. Once Complainant was in contact with the EEO Counselor, email correspondence reflects that the EEO Counselor was responsive and communicative. Notably, on October 6, 2021, the EEO Case Manager assigned to make a determination on Complainant’s complaint emailed him with an additional opportunity for clarification regarding the delayed EEO contact and his reprisal allegation before issuing the Agency’s decision. An extension of the limitation period to initiate EEO contact is not warranted. Additional Allegations of Discrimination & Reprisal On appeal, Complainant asserts that the Agency failed fully address his complaint, including his allegations of reprisal for his EEO activity associated with the instant complaint. The allegations include, but are not limited to, an ongoing hostile work environment perpetuated by the selecting official, with retaliatory and discriminatory actions continuing through September 2021. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Having thoroughly reviewed the record, the Commission concludes that the only claim that Complainant raised with the EEO Counselor for the instant complaint was his January 12, 2021 nonselection for the position of VS Chief. Complainant’s additional reprisal allegations are included in a document entitled “Official Complaint,” which he submitted with his Formal EEO Complaint after the conclusion of informal EEO Counseling. As these claims were not first raised with an EEO Counselor, they cannot be reviewed in this decision. 3 3 The Agency properly notified Complainant that the only claim raised during informal EEO Counseling for this complaint was the January 12, 2021 nonselection. The EEO Counselor’s Report, the VA Form 4939 (the Agency’s Formal EEO Complaint Form), and the Notice of Right to File (“NRTF”) all explain that the claims included on the Formal EEO Complaint must first be raised with an EEO Counselor. A September 16, 2021 email conversation between Complainant and his assigned EEO Counselor provides written confirmation from Complainant 2022000558 5 To the extent that he has not already done so,4 if Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. that he and the EEO Counselor verbally discussed the conclusion of the informal counseling stage, and that Complainant received and read the NRTF and the VA Form 4939. 4 Complainant discussed some of his new reprisal allegations in response to the EEO Case Manager’s October 6, 2021 email. 2022000558 6 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2022000558 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 21, 2022 Date