Virgina K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2020003465 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgina K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003465 Agency No. 200I-VI07-2020101557 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 27, 2020, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as an Advanced Medical Support Assistant, GS- 6, at the Agency’s VISN 7 in Charleston, South Carolina. On December 27, 2019, Complainant initiated EEO Counselor contact regarding two of three non-selections. Informal efforts at resolution were not successful. On March 24, 2020, Complainant filed the instant formal complaint. As summarized by the Agency, Complainant claimed that the Agency subjected her to discrimination based on sex (female) and disability when: 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. 2020003465 2 1. on August 8, 2019, Complainant was informed of her non-selection for the position of Lead Medical Support Assistant, Vacancy Announcement No. CBAY- 10551654-19-KGB (“Position 1”); 2. on November 14, 2019, Complainant was notified of her non-selection for the position of Lead Medical Support Assistant, Vacancy Announcement No. CBAY- 10625647-19-KGB (“Position 2”); and 3. on January 17, 2020, Complainant was notified of her non-selection/non-referral for the position of Medical Administrative Specialist (Administrative Officer of the Day), Vacancy Announcement No. CBAY-10676279-20TW (“Position 3”). On April 27, 2020, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial EEO Counselor contact was on December 27, 2019, which it found to be beyond the 45- day limitation period. The instant appeal followed. 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 personnel action, within forty-five (45) days of the effective date of the action. Position 1 Our review of the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on December 27, 2019, more than 45 days from the Agency’s August 26, 2019 written notification of her non-selection for Position 1. For this reason, the Agency dismissed the claim regarding Position 1 as untimely raised. However, the Commission has adopted a “reasonable suspicion” 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. Here, Complainant has asserted that she had no reason to suspect discrimination upon initially learning of her non-selection for Position 1. We agree. The record shows that in August 2019, within days of her non-selection, Complainant submitted a FOIA request to obtain information to see how she was ranked during the selection process. She received the requested FOIA information on November 27, 2019. Complainant has persuasively asserted that she concluded the FOIA information indicated she may have been discriminated against because she now knew she had been highly ranked but was not offered an interview. 2020003465 3 Once this suspicion of discrimination was raised, she initiated EEO Counselor contact 30 days later on December 27, 2019. As such, we conclude Complainant’s EEO counselor contact for Position 1 should be deemed timely made and should not have been dismissed. Position 2 On April 14, 2020, Complainant notified the EEO Counselor that she wanted to add another non- selection to her complaint, referencing the November 14, 2019 notification of her non-selection for Position 2. When Complainant was asked by the counselor why she waited to raise this issue, Complainant responded in an April 15, 2020 email stating: “I didn’t raise the issue at that time because I filed a FOIA request for the documents and I waited for the FOIA documents to come back and I could confirm that the person who received the job was an agency employee with no other status.” While not altogether clear, it appears that the FOIA request she was referencing was the same one as in Position 1, where the record shows she received a response on November 27, 2019. Once Complainant received that FOIA response, she should have developed a reasonable suspicion of discrimination as of November 27 and therefore her April 14, 2020 attempt to add Position 2 to the complaint was untimely made and properly dismissed by the Agency. Position 3 On March 10, 2020, while still in EEO counseling over her claim concerning Position 1, Complainant had also sought to add to an additional non-selection (Position 3) to her complaint. The record shows that Complainant was informed of her non-selection for Position 3 on January 17, 2020. Therefore, Complainant’s initial counselor contact was 53 days after she was informed she had not been selected for Position 3. Here, we again affirm the Agency’s dismissal on the basis that the Agency’s November 27, 2019 FOIA response concerning Positions 1 and 2 was sufficient to cause Complainant to reasonably suspect discrimination regarding all three non- selections in the two-month period. We therefore agree that her counseling contact regarding Position 3 was untimely made and properly dismissed. CONCLUSION The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact is REVERSED regarding Complainant’s claim concerning Position 1 and AFFIRMED regarding her claims concerning Positions 2 and 3. 2020003465 4 ORDER (E0618) The Agency is ordered to process the remanded claim (claim (1) concerning Position 1) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020003465 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020003465 6 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 (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. 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 September 29, 2020 Date