EEOC Appeal No. 0120171225
05-02-2017
Porter P. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Porter P.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171225
Agency No. 2004-0659-20161-04305
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 2, 2017, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Blind Rehabilitation Teacher for the Agency in Tucson, Arizona.
On July 15, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On October 12, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age when (according to the Agency's final decision):
(1) in 2010 and 2012, Complainant was denied the opportunity to participate in the Technical Career Field Program; and
(2) in June 2016, Complainant learned he was not selected for the Blind Rehabilitation Outpatient Specialist position advertised under vacancy number PM-16-MAL 168015.
On December 15, 2016, the Agency issued a partial acceptance letter indicating it would investigate claim (2). However, it dismissed claim (1), pursuant to 29 U.S.C. � 1614.702(a)(2), on the grounds of untimely EEO counselor contact.
On December 29, 2016, the Agency requested that Complainant provide it with "the recruitment for the accepted non-selection vacancy claim. Please include the vacancy number of application." Complainant responded with the following, "Vacancy Identification Number (VIN): 771071." The Agency responded asking for further clarification. On January 4, 2017, Complainant responded, "The announcement #PM-16-MALI68015 is not for the job I am complaining about. This [PM-16-MALI68015] is a 2016 job, the 771071 number is for the job I applied for in 2012 [emphasis added]".
As a result of this correspondence, on February 2, 2017, the Agency sent Complainant notice that it was rescinding it prior acceptance (issued on December 15, 2016) of claim 2 now that Complainant had clarified which position he was complaining about. The Agency, therefore, dismissed the complaint in its entirety. Specifically, the Agency dismissed claim 1, pursuant to 29 U.S.C. � 1614.702(a)(2), on the grounds of untimely EEO counselor contact. Regarding claim 2, the Agency stated that Complainant previously raised the claim in an earlier EEO complaint (Agency Case Number 200P-0678-2016-104093) and therefore dismissed claim 2, pursuant to 29 U.S.C. � 1614.702(a)(1), for stating the same claim that had been previously raised.
The instant appeal of the February 2, 2017 dismissal decision followed.
ANALYSIS AND FINDINGS
As a threshold matter, the formal complaint at issue here does not constitute two separate claims as characterized by the Agency. Rather, as articulated by Complainant, he is alleging age discrimination when not selected for a number of Technical Career Field (TCF) Program positions2 between 2010 and 2012. He specifically identified one of these positions as the "BROS [Blind Rehabilitation Outpatient Specialist] position in 2012, vacancy number 771071." Complainant has made it clear that he is not filing his complaint on a 2016 selection under vacancy number PM-16-MALI68015. Therefore, it appears his complaint raises a single claim of ongoing age discrimination when he was not selected for a TCF position between 2010 and 2012.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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.
Here, Complainant first contacted an EEO Counselor on July 15, 2016, regarding an allegedly discriminatory event occurring, at latest, in 2012. While Complainant discussed the matter identified by the Agency as "Claim 2" during EEO counseling, he later clearly clarified that he was not alleging discrimination in the 2016 non-selection of vacancy number PM-16-MALI68015. Rather, he was concerned with a non-selection in 2012 under vacancy number 771071.
The Commission has adopted a "reasonable suspicion" 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.
Complainant explained his delay in challenging the 2012 non-selection by arguing he did not develop reasonable suspicion of age discrimination until 2016. He stated that when he was not selected for a position in 2016, he contacted his union representative and was told he might have a claim of age discrimination. Complainant stated that after thinking about this information, he decided that age discrimination was also the deciding factor in his non-selection for the TCF "BROS [Blind Rehabilitation Outpatient Specialist] position in 2012, vacancy number 771071."
Complainant correctly points out that the time for contacting an EEO counselor is not "triggered" until a complainant reasonably suspects that discrimination has occurred. However, he cites no instance in which the Commission has applied the reasonable suspicion standard in a circumstance involving an asserted ignorance of substantive law rather than a lack of awareness of relevant facts.
This appeal is governed by our decision in Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991), which involved a complainant's untimely pursuit of a constructive discharge claim. The complainant urged waiver of the deadline on the ground that he was unaware he had a possible cause of action. Noting the distinction between ignorance of the law and ignorance of relevant facts, the Commission did not excuse the failure to raise the claim in a timely manner, reasoning that complainant had a duty to undertake reasonable efforts to ascertain his legal rights.
The circumstances here are analogous to those in Wood. Since we see no reason for a different result, the Agency's dismissal decision on the grounds of untimely EEO counselor contact is AFFIRMED.
Because we affirm on the grounds of untimely EEO Counselor contact, we decline to address the Agency's alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2017
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
James Fowler
4990 West Camino De Manana
Tucson, AZ 85742
Doris L. Gruntmeir
Chief Counsel, Personnel Law Group
Office of General Counsel
810 Vermont Ave., N.W.
Washington, DC 20420
Harvey Johnson, Deputy Assistant Secretary, Resolution Management
Office of Resolution Management (08D)
Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420
__________________
Date
______________________________
Compliance and Control Division
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 According to Complainant, the Technical Career Field (TCF) Program was designed to bring entry-level employees, with limited experience, into higher level positions. He asserted that to do so some of the traditional qualification standards were waived or modified. As a result, he stated that older employees, like himself, had limited promotion potential because the higher graded positions were all going to TCF candidates, who he alleges were much younger.
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