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

Equal Employment Opportunity Commission

Apr 19, 2019

2019001652 (E.E.O.C. Apr. 19, 2019)

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

Emanuel W.,1
Complainant,

v.

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

Appeal No. 2019001652

Agency No. 200J-0589-2018105443

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 30, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed as a Nurse, Grade
IV-Step 12, at a VA Medical Center (VAMC) in Kansas City, Missouri. From May 1, 2015 to
May 1, 2017, Complainant served as the Acting Associate Director of Patient Care Services
(AADPCS) at the Kansas City VAMC.

On July 30, 2018, Complainant initiated EEO contact alleging that the Agency discriminated
against him on the bases of age (62), sex (male), and sexual orientation when, between May
2015 and May 2017, it failed to promote him to Nurse V while he served as AADPCS.2
Complainant alleged, in 2017, he requested a higher wage from the Director, but she gave him a
$4,000 monetary award instead. Complainant stated that he later learned that a female colleague
served as Acting Associate Medical Center Director (AAMCD) for ninety days and the Agency

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.

2 We note that Complainant retired effective April 30, 2018.
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compensated her at a higher grade during that time.3 Subsequently, on September 11, 2018,
Complainant filed a formal EEO complaint reiterating the same.

The record contains an Agency training record for Complainant showing “EEO, Diversity, and
Conflict Management Training for Managers and Supervisors” and “Prevention of Workplace
Harassment/No FEAR” given April 10, 2017. The record also includes an email, dated October
29, 2018, from Complainant in which he stated that he initiated EEO contact beyond the 45-day
timeframe because the facility was “an unhealthy work environment.”

On October 30, 2018, the Agency issued a final decision dismissing Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The decision
stated that Complainant was aware of the statutory timeframe due to EEO Training in April
2017, and that fear of reprisal as alleged by Complainant does not warrant waiver, tolling, or
extension of the timeframe.

The instant appeal from Complainant followed. On appeal, Complainant stated that he thought
there was a 90-day statutory timeframe for initiating EEO contact and it was not until May 1,
2018 (after he retired) that he learned that his colleague received a wage increase while serving
as AAMCD.

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 EEO 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.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

3 The Counselor’s Report stated, in March 2018, Complainant discussed his concerns with an
EEO Representative but decided not to pursue the matter until he no longer worked at the
facility.
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Based on the circumstances herein, we find that the Agency properly dismissed Complainant's
claim of denial of higher wages. The record discloses that the alleged discriminatory event
occurred during Complainant’s AADPCS detail between May 1, 2015 and May 1, 2017, but
Complainant did not initiate contact with an EEO Counselor until July 30, 2018, which is beyond
the forty-five (45) day limitation period. Even if we assume Complainant initiated EEO contact
in March 2018 when he spoke with an EEO representative, his contact would still be untimely.

Further, on appeal, Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact. The Commission has
repeatedly held that mere fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. See Duncan v. Dep’t of Veterans Affairs, EEOC
Request No. 05970315 (July 10, 1998); Kovarik v. Dep’t of Defense, EEOC Request No.
05930898 (December 9, 1993).

CONCLUSION

We AFFIRM the Agency's final decision dismissing Complainant's complaint.

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.
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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 (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

April 19, 2019
Date