0120103484
02-01-2011
Carolyn Y. Fox, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carolyn Y. Fox,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103484
Agency No. 2003-0104-2010100218
DECISION
On October 2, 2010, Complainant filed an appeal from the Agency's
September 10, 2010, Final Agency Decision (FAD) concerning her
equal employment opportunity complaint alleging unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1 In her complaint,
Complainant alleged that she was subjected to discrimination on the basis
of age (60) when she was not selected for the position of Supervisory
Systems and Procedures Analyst. For the following reasons, the Commission
remands the complaint for further investigation.
BACKGROUND
At the time giving rise to this complaint, Complainant worked for the
Department of Veterans Affairs as an Account Technician in Austin, Texas.
She applied for the position of Supervisory Systems and Procedures Analyst
within the Agency. On August 27, 2009, the Agency notified Complainant
she was not selected for the position.
In its FAD, the Agency noted Complainant learned she was not selected
on August 27, 2009, and contacted an EEO Counselor on October 16, 2009.
Based on these dates, the Agency dismissed the claim as exceeding the
45-day statutory requirement to initiate contact with an EEO Counselor
when alleging discrimination. 29 C.F.R. � 1614.107(a)(2).
CONTENTIONS ON APPEAL
With her second notice of appeal, Complainant submits a handwritten
chronology writing that she learned on August 27, 2009, that she did not
get the job; that she contacted a union official on September 1, 2009,
informing him she believed she was discriminated against based on her age
and asked him to review part of the selection package; that on October
9, 2009, the union official informed her that after his review he felt
there was discrimination; and on October 16, 2009, Complainant filed
an EEO complaint with the Agency in Houston, Texas.2 In a subsequent
brief in support of her appeal, Complainant argues for the first time
that she and her non-attorney representative initially contacted an EEO
Counselor in the Office of Resolution Management (ORM) on October 9,
2009, listing a telephone number.3 Complainant wrote that on October
16, 2009, she received forms from the EEO counselor, and completed and
returned them by facsimile the same day. She wrote the EEO counselor
sent an email confirming their receipt. It is the date of October 16,
2010, and not October 9, 2009, that is listed in the complaint and in
the counselor's report as the initial contact with an EEO Counselor.
In opposition to the appeal, the Agency argues that its dismissal of
Complainant's complaint should be affirmed. It indicates that Complainant
did not submit any appeal argument to the Agency.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). In her complaint, Complainant wrote that she was informed
on August 27, 2009, that she was not selected. She wrote in her complaint
that a woman half her age from outside the government was hired, and this
was not the first time she was passed over for a position by the Agency
for a younger selectee. Complainant advised the EEO counselor that she
became fully aware of the alleged discriminatory personnel action on
October 9, 2009. This was when she contends she obtained information
about the selection certification.
The Commission adopted a "reasonable suspicion" test as to when
the statutory 45 day period begins. "For purposes of Title VII's
requirement that administrative remedies be timely exhausted, the time
period to initiate contact with an Equal Employment Opportunity (EEO)
counselor begins to run when an employee has a reasonable suspicion of a
discriminatory action." Adesalu v. Copps, 606 F.Supp.2d 97 (D.D.C., 2009)
citing 42 U.S.C.A. � 2000e-16(c). As explained in McCants v. Glickman,
the reasonable suspicion standard is a middle ground between the date
the alleged discriminatory act occurs and the date that the Complainant
first acquires facts necessary to sustain a charge of discrimination.
180 F.Supp.2d 35, 41 (D.D.C., 2001). Complainant is not entitled to
additional tolling of the limitations period simply because she later
learned additional facts. Olson v. Mobil Oil Corp., 904 F.2d 198,
202-203 (4th Cir.1990). Furthermore, "[i]t is not necessary to the
filing of a charge that one possess a proven case" but rather that
"one purpose of a charge and a complaint is to initiate the process of
uncovering" additional facts. Hulsey v. Kmart, Inc., 43 F.3d 555, 557
(10th Cir.1994). Therefore, Complainant's statutory period started on
August 27, 2009, when she learned she was not selected and learned about
the selectee.
The next question is when Complainant initially contacted an EEO
counselor. For the first time in Complainant's brief in support of
her appeal, she contends that she contacted an EEO counselor in ORM on
October 9, 2010. There is no documentation in the record of Complainant's
alleged contact with ORM on October 9, 2009.
As the timeliness of Complainant's complaint hinges on whether she
in fact contacted ORM on October 9, 2010, regarding her complaint of
alleged discrimination, this matter must be remanded to the Agency
for further investigation as to the exact date of Complainant's first
contact with ORM. The Agency is instructed to conduct a supplemental
investigation and determine all relevant facts before reaching a new
Final Agency Decision.
For the foregoing reasons, the FAD is VACATED and is REMANDED for a
supplemental investigation.
ORDER
The Agency is ordered to take the following remedial actions:
* The Agency shall acknowledge to the Complainant that it has received
the remanded claim within 30 calendar days of the date this decision
becomes final;
* The Agency shall supplement the record with information on when
Complainant initiated contact with an EEO Counselor, i.e., October 9,
2009, or October 16, 2009.
* Thereafter, the Agency shall provide Complainant a copy of the
supplemental record, and offer her an opportunity to respond in writing.
Any response shall be included in the supplemental record.
After supplementing the record, as directed above, the Agency shall
either accept Complainant's complaint and process in accordance with 29
C.F.R. �1614, or issue a new FAD, appealable to the EEOC, dismissing
the entire complaint. The Agency shall issue a letter accepting the
complaint or a FAD dismissing the entire complaint within 60 calendar
days after this decision becomes final.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the letter accepting the complaint or FAD dismissing the entire
complaint 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
February 1, 2011
__________________
Date
1 In a FAD dated August 11, 2010, the Agency wrote that Complainant's
complaint was now reinstated from the point processing ceased because
the settlement agreement which closed it was invalid under the Older
Workers Benefit Protections Act (OWBPA), and there was no meeting of the
minds on a major settlement term. In its FAD, the Agency indicated that
Complainant wanted her complaint reinstated. The Agency reinstated the
complaint at the acceptability pending stage of the complaint process.
On August 23, 2010, Complainant appealed the August 11, 2010, FAD, but
did not contest the factual findings therein nor make any argument.
On September 10, 2010, the Agency issued a second FAD dismissing the
complaint on procedural grounds. Complainant appealed again, arguing her
complaint should not have been dismissed. We have merged the first appeal
into the second appeal. Given Complainant's arguments, the only issue
before us is whether the Agency properly dismissed the complaint.
2 The formal complaint was actually filed much later.
3 Complainant writes that she contacted the same EEO counselor who later
counseled her.
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0120103484
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103484