0120130365
03-15-2013
James B. Turkvant, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
James B. Turkvant,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120130365
Agency No. 12-11-106
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 21, 2012, 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 an Expert Auditor, GS-13, at the U.S. Department of Labor-OIG facility in Washington, D.C.
On May 18, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful and, on July 24, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race, color, and in reprisal for prior protected activity.
On September 21, 2012, the Agency issued a final decision. Therein, the Agency determined that Complainant's formal complaint was comprised of the claim that he was discriminated against when he was not selected for a GS-14 Supervisory Auditor position under Vacancy Announcement No. MS-12-OIG-OA-07 (multiple locations), and the claim that he had been denied managerial/supervisory training.
The Agency dismissed the formal complaint, pursuant to 29 C.F.R.� 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency stated that Complainant received the notice of his non-selection for the supervisory position at issue by email on March 29, 2011, but that he did not contact an EEO Counselor on that matter until May 18, 2012, which it determined was beyond the 45-day time limit set by the regulation. The Agency also determined that the alleged denial of managerial/supervisory training occurred in February 2012, and that this matter was also untimely raised with an EEO Counselor.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Commission had adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent.
On appeal, Complainant argues that that his EEO Counselor contact was not untimely. Complainant stated that he continually applied for the GS-14 positions located in multiple cities and received an interview in February 2012. He stated that the interview panel told him that they would be scheduling candidates for a second interview within a week. He stated that no second interview took place and, on March 29, 2012, the Human Resources Department notified him that his name was referred as one of the best qualified candidates, but he was not selected for the position. However, Complainant stated that he did not know who had been selected until April 4, 2012, when the Assistant Inspector General sent out a personnel announcement with the names and brief career histories of the four selectees. Complainant contacted an EEO Counselor on May 18, 2012, within 45 days of this email.
Complainant further argues that he has applied for Managerial/Supervisory training, "as part of [his] EDP," consistently, every year, and has engaged in ongoing discussions with his Supervisor regarding the lack of external training which he sought.
The record contains a copy of an email from an OIG official dated April 4, 2012, announcing the selection of four individuals for vacant GS-14 Supervisory Auditor positions.
The Agency's dismissal of the matter relating to the matter of the non-selection is not supported by the facts stated in its decision. The Agency stated that that Complainant received notice of his non-selection for the supervisory position at issue by email on March 29, 2011. However, the record supports Complainant's argument that he did not reasonably suspect discrimination until he learned the identities of the four selectees in the April 4, 2012 OIG email regarding selections for the subject positions. Complainant's initial EEO contact on May 18, 2012, was within the 45-day period of the date of the April 4, 2012 email transmission.
Moreover, to the extent that the formal complaint can be construed as raising a separate claim regarding training denials, there is nothing in the record to show that this matter related to a denial in February 2012. Instead, the record reflects that Complainant has asserted that he has been the victim of "a consistent pattern of reprisal and discrimination," and that he has consistently and unsuccessfully sought training opportunities. Moreover, as noted above, the non-selection claim is found to have been timely raised with an EEO Counselor. We determine that the training denial issue has a nexus to the non-selection issue, and therefore is also deemed timely raised with an EEO Counselor.
In summary, we determine that Complainant's formal complaint was improperly dismissed on the grounds of untimely EEO counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights 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
March 15, 2013
__________________
Date
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0120130365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130365