[Redacted], Yun C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 18, 2022

Appeal No. 2022002524 (E.E.O.C. Jul. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yun C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002524 Agency No. 2003-635-2022-143171 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 1, 2022, dismissing her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Psychologist at the Agency’s Regional Medical Center in Oklahoma City, Oklahoma. On January 22, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when, on August 21, 2021, the Staff Psychologist (SP) failed to select her for the position GS-14 Assistant Chief/Training Director. The Agency issued a decision dismissing the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that, Complainant reasonably suspected discrimination more than 45 days before her initial EEO contact on December 10, 2021. 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. 2022002524 2 The Agency noted that while Complainant was notified of her non-selection for the Assistant Chief/Training Director position on August 21, 2021, she waited at least 111 days from the notification to initiate contact with an EEO Counselor. Further, the Agency observed that during the pre-complaint process, Complainant challenged the date of August 21, 2021, and requested that the EEO Office recognize the date of the allegedly discriminatory event as November 18, 2021. It was on this later date that she reviewed information from her Freedom of Information Act (FOIA) request, which Complainant stated provided proof of sex and age discrimination. According to the Agency, Complainant acknowledged that on September 29, 2021 she became aware of the selection of a male candidate, and indicated that at the time she felt something was wrong and unfair. But, she was unsure if discrimination had occurred until she reviewed interview scores and other information on November 18, 2021. Rather than initiate contact with an EEO counselor when she learned of the selection of a male candidate on September 29, 2021, Complainant submitted a FOIA request on October 7, 2021. Upon receipt of the FOIA information, on November 18, 2021, Complainant “could not find any written reason on why and how the selectee was chosen over her given the scores.” The Agency found that Complainant’s decision to obtain "supporting facts" or "proof" of discrimination before initiating a complaint resulted in her untimely EEO Counselor contact. The instant appeal followed the Agency’s dismissal decision. On appeal, Complainant explains that while she was informed of her non-selection on August 21, 2021, the selection for the position was not announced until September 29, 2021. She describes being surprised and disappointed that a younger male, with significantly less work experience was selected. Complainant asserts that she initially assumed the selection was based solely on interview scores, without accounting for experience. Only after she obtained the interview scores, through her FOIA request, and realized they were equal, did she realize she had been subjected to discrimination. In response, the Agency maintains that Complainant’s FOIA request is evidence of her earlier suspicion of discrimination. The Agency also maintains that Complainant received specific information on EEO procedures, including the 45-day time limit for contacting an EEO Counselor, through employee training and that this information was also posted in common areas of the facility since at least August 2012. 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. 2022002524 3 The record reflects that at the time Complainant learned that a young male candidate was selected, on September 29, 2021, she had, or should have had, a reasonable suspicion of unlawful discrimination. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has “supporting facts” or “proof” of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken vs. United States Postal Service, EEOC Request No. 0590065 (March 29, 1990). Here, Complainant reasonable suspicion motivated her FOIA request, the results of which established in her mind that discrimination had occurred. Waiting to obtain such “proof” caused her to be untimely in contacting the EEO Counselor. Complainant has failed to provide sufficient justification for extending or tolling the time limitation. Therefore, we find that the Agency properly dismissed the instant complaint for untimely EEO Counselor contact. 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 2022002524 4 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. 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. 2022002524 5 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 July 18, 2022 Date