0120141628
07-17-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120141628
Agency No. ARMEPCOM13NOV04048
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 6, 2014, 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.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Assistant at the Agency's Charlotte Military Entrance Processing Station (MEPS) in Charlotte, North Carolina.
On November 18, 2013, Complainant initiated EEO Counselor contact.1 Informal efforts to resolve her concerns were unsuccessful.
On February 19, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race and sex when:
on August 8, 2013, she became aware that she was not considered for the vacant Administrative Services Technician (AST), GS-0303-07 position by [Major, Commander] and [ISG, Senior Enlisted Advisor].
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO contact occurred approximately 102 days after the alleged discriminatory event occurred. The Agency noted in an affidavit, Complainant indicated that on August 8, 2013 the selectee announced his hire into the vacant Assistant Services Technician (AST) through his Facebook page in which Complainant provided a copy attached with her formal complaint.
The record contains a copy of Complainant's affidavit, dated November 18, 2013. Therein, Complainant stated "despite the job announcement not being posted, [the named selectee] announced his hire as the Administrative Services Tech for Charlotte MEPS on August 8, 2013 via Facebook. In addition, he stated that he was told to keep his recent hire secret from other employees. A. Evidence Provided: A screenshot of [selectee's] Facebook post announcing his new job position. In the comments thread, he specifies his new hire as an AST as well as the "they made me keep it a secret" statement."
Further, Complainant stated that on August 13, 2013, the selectee "was assigned as Charlotte MEPS Primary Government Purchase Card holder via a Command policy letter. This particular duty is a major function of the Administrative Services Tech position. On August 26th, 2013, he was assigned to other functions correlating with the AST job description and duties."
The record also contains a copy of the email correspondence dated December 2, 2013 between the EEO Counselor and Complainant. When questioned which day she became aware of the alleged discriminatory event, Complainant responded "it was October 4, 2013. I recognized the position was filled when the commander ([Major]) announced in an email message. In the email, he stated that [selectee] (or Chief [selectee]) was the new AST."
The record contains a copy of the Major's email dated October 4, 2013. Therein, the Major stated "there are so many of you that deserve the recognition for our individual efforts but this month the 'Head in the Game' award goes to our new AST, [the named selectee]."
Complainant, on appeal, argued that the Agency erred dismissing her formal complaint on the grounds of untimely EEO Counselor contact. For instance, Complainant states that she considered the selectee's statement in his Facebook page "as being incorrect, since [a named former AST] was still employed as the Charlotte AST during the same time. [Former AST] continued to work as Charlotte MEPS AST until August 21st, 2013."
Further, Complainant argued that after the former AST's departure, she believed the subject job vacancy would be posted. Specifically, Complainant stated "I came to this assumption for two reasons. First, Charlotte MEPS had traditionally announced its previous job vacancies on USAJOBS. Secondly, new job vacancies within Charlotte MEPS were being advertised on USAJOBS during this particular time...I did not develop a reasonable suspicion of discrimination until I had learned of [selectee's] hire as the new AST on October 4th, 2013. This announcement was made via [Major's] work email."
Moreover, Complainant argued that it was not until October 4, 2013, when she became aware of the Major's intentions "to not publicize the AST job vacancy, either internally or externally, or that the selection for the AST position had been made."
In response, the Agency requests that the Commission affirm its final decision. The Agency argued that following the former AST's retirement announcement, Agency management considered its available civilian group for the filing of the subject position. The selectee was recommended by his supervisor for the subject position. The Agency stated that during the August 6, 2013 staff meeting, the Major announced that MEPS had requested to hire the selectee as the AST. On August 12, 2013, the Major officially appointed the selectee as the Primary Government Purchase Card Holder which is a primary function of the AST position.
The Agency argued that on August 8, 2013, Complainant was aware of the selectee's new AST job through his Facebook page and she "provided it to the EEO office in support of her complaint." The Agency also stated that Complainant submitted a copy of Complainant's Primary Card Holder announcement "to the EEO office as part of her complaint and referenced in her affidavit dated November 20, 2013."
Moreover, the Agency stated the Charlotte MEPS "is a relatively small organization, consisting of approximately 22 civilian employees. It is difficult to fathom that, in an organization that small with so few employees, Complainant would not become aware of [selectee's] appointment to the AST position until approximately 6 weeks after he unofficially began performing the duties and nearly a month after he had been officially appointed."
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. 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. Department 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.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The alleged discriminatory event occurred on August 8, 2013, but Complainant did not initiate contact with an EEO Counselor until November 18, 2013, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. We note that in the December 2, 2013 email correspondence between Complainant and the EEO Counselor, Complainant's claim that it was not until October 4, 2013, she became aware that she was not considered for the AST position was in direct contradiction to Complainant's November 18, 2013 affidavit in which she stated that she became aware of the alleged discriminatory event on August 8, 2013.
In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
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 (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 (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
July 17, 2014
__________________
Date
1 The record reflects that the Agency inadvertently identified Complainant's initial EEO contact date as November 11, 2013, in the instant final decision instead of November 18, 2013, as stated in the EEO Counselor's Report.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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