Cleveland C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

2019000173 (E.E.O.C. Sep. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cleveland C.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs (VA),
Agency.

Appeal No. 2019000173

Hearing No. 460-2018-00023X

Agency No. 2003-0580-2017101537

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated May 25, 2018, dismissing his 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

At the time of events giving rise to this complaint, Complainant worked as a Safe Patient
Handling/Reusable Medical Equipment Coordinator, Nurse III-6, in the Clinical Practice Office
at the DeBakey VA Medical Center (VAMC) in Houston, Texas.

On January 24, 2017, Complainant initiated EEO contact alleging that the Agency subjected him
to discrimination on the bases of race (African-American), sex (male), and disability (service-
connected plantar fasciitis) when the Agency failed to select him for the Associate Chief Nurse
of Operations, Clinical Practice Office, FN-0610-4, position under Vacancy Announcement
Number JP-16-VAR-1799988.

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.
2019000173

2
On March 20, 2017, Complainant filed a formal EEO complaint reiterating the aforementioned
claim of discrimination. The Agency accepted Complainant’s complaint for investigation.

Following an EEO investigation, the Agency informed Complainant of the right to request a
hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision.
Complainant requested a hearing.

At the hearing stage, the Agency filed a Motion to Dismiss. In support of its motion, the Agency
stated that, due to the investigation, it learned that Complainant was aware of his non-selection
on November 18, 2016 and, on November 28, 2016, visited Human Resources (HR) because of
this knowledge.2 The Agency stated that Complainant suspected discrimination by at least,
December 8, 2016, when he asked to challenge the non-selection.

In an Order of Dismissal with Prejudice dated May 15, 2018, the assigned AJ dismissed
Complainant’s complaint for untimely EEO Counselor contact. In a final order dated May 25,
2018, the Agency fully implemented the AJ’s dismissal.

The instant appeal from Complainant followed.3 On appeal, Complainant stated, on November
28, 2016, he visited HR to inquire about the status of the position for which he applied. He
stated, on December 8, 2016, an HR Specialist (HR1) informed him that the Agency selected
another applicant for the position, but he was not informed of the race or sex of the selectee and
did not suspect discrimination. Complainant stated that he submitted a FOIA request about the
selection process, and, about January 20, 2017, received said information. Complainant stated
that he reviewed the documentation and noticed “flaws and inconsistencies” in the interview
process. Complainant stated that he initiated EEO contact on January 24, 2017, due to the
discrepancies he found in the FOIA records. Complainant stated that he initiated EEO contact
within 45 days of “reasonably suspect[ing]” discrimination.

2 In his July 13, 2017 affidavit proceedings, Complainant stated that he learned during a strategic
planning meeting on November 18, 2016, that he would not be interviewed for the Coordinator
position. Complainant stated, at the meeting, the Selecting Official stated that she planned to
interview the two candidates referred to her by the hiring panel. Complainant stated further, on
November 28, 2016, he inquired with an HR Specialist about the status of selection for the
position and inquired with the Selecting Official about serving as acting in the position and an
opportunity to interview. Complainant stated that he did not receive a response from the
Selecting Official about his inquiry. Complainant stated, on December 8, 2016, the HR
Specialist informed him that management chose a selectee on December 7, 2016, and extended
an offer to the selectee. Complainant stated that he met the selectee (Caucasian, male) on
December 13, 2016.

3 On appeal, Complainant stated that the Agency did not issue a final agency action and certainly
did not do so within 40 days of the AJ’s decision, as is required by EEOC regulation.
2019000173

3
ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, in pertinent part, that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply with the applicable time
limits contained in § 1614.105. Under 29 C.F.R. § 1614.105(a)(1), 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 (February 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.

The Agency determined that Complainant became aware of the alleged discrimination on
November 18, 2016, during a strategic planning meeting, when the Selecting Official stated that
she planned to interview the two candidates who were referred to her by the hiring panel. The
Agency further determined that even if Complainant lacked “reasonable suspicion” on
November 18, 2016, reasonable suspicion existed before Complainant's FOIA request and
receipt of requested information about January 20, 2017. On appeal, Complainant argues
reasonable suspicion of discrimination could not be raised until he became aware of the race,
sex, or disability status of the selectee.

In pertinent part, the record shows, in a November 28, 2016 email, Complainant inquired with
the Selecting Official (SO) about the status of the Coordinator position and requested an
interview. After no response, on December 8, 2016, Complainant contacted an HR Manager
(HR2) about the status of the position. On December 9, 2016, HR2 informed Complainant that
the hiring department submitted a selection to HR and it would make an offer soon. That same
day, Complainant responded to HR: “Now that a candidate has been selected, I would like to
initiate the process for challenging the selection. Could you please provide to me all available
options along with the proper guidelines to follow so that I may stay aligned with all federal
regulations and protocols.” On December 13, 2016, HR1 stated: “I would first start with the
selecting official as we discussed in my office. You can address the questions to her. If you want
to file something more formal I suggest you meet with your union rep.” On December 13, 2016,
Complainant also met the selectee in-person.

In an email dated December 16, 2016 to HR, Complainant stated, “I am currently aware that a
selection for the Associate Chief Nurse for Operations, Clinical Practice Office (JP-16-VAR-
1799988) position has been made to include an offer from HR. This is my formal request to
challenge the selection in accordance with VA Handbook 5005/57 Part II Chapter 3 . . .
Preference to Veterans.”
2019000173

4
In the December 16 email, Complainant requested the written record pertaining to the
qualifications of candidates selected for interview as compared to his qualifications. The record
contains an undated, automatically-generated notice of non-selection to Complainant.

Based on the totality of the circumstances, we find that the Agency improperly dismissed
Complainant's complaint for untimely EEO contact. Complainant initiated EEO contact within
the 45-day statutory timeframe of learning the selectee’s protected classes during their in-person
meeting on December 13, 2016, as well as within the date he sent an email to challenge his non-
selection. Further, the record shows that Complainant expressed concern to HR about the non-
selection and, on December 9, 2016, requested information on “all available options” to
challenge the non-selection. An HR representative suggested Complainant contact the hiring
official and his union representative. However, the HR representative did not inform
Complainant of his rights under the Federal Sector EEO process as an option at that time. In
sum, we find Complainant’s January 24, 2017 EEO contact timely.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we REVERSE the
Agency's final order dismissing the instant complaint and we REMAND the matter for further
processing consistent with this decision and the Order below.

ORDER

Within fifteen (15) calendar days of the date this decision is issued, the Agency shall file a
written request to reinstate the hearing on this complaint with the Hearings Unit of the EEOC’s
Houston District Office. The request shall be accompanied with a copy of the complete
complaint file, as well as a copy of this appellate decision. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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).
2019000173

5
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 CFR § 1614.503(f) for enforcement by that agency.
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.
2019000173

6
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 (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 19, 2019
Date