[Redacted], Vaughn C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2023001143 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vaughn C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2023001143 Agency No. 200P-612-2022-147212 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 5, 2022, dismissing a formal complaint alleging 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 Complainant was promoted to his current position in March 2021. Complainant has since worked as a Police Sergeant / Lead Police Officer, Grade GS-7, Step 10, in Police Services at the Agency’s Oakland Outpatient Clinic in its Northern California VA Healthcare System. In November 2021, the Agency realigned the Oakland Outpatient Clinic into the Agency’s San Francisco VA Healthcare System in California. Complainant was likewise reassigned from the Northern California VA Healthcare System to the San Francisco VA Healthcare System. His grade and step levels remained that same. On July 14, 2022, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were not successful. 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 2023001143 On October 13, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected to discrimination based on race (Black / African-American) when, on October 25, 2021, Complainant learned that he did not receive a pay and step increase. In the instant final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant told the EEO Counselor that he became aware of the issue when he was reviewing his pay stubs on October 25, 2021. The Agency determined, therefore, that Complainant’s contact with the EEO Counselor on July 14, 2022, was untimely because the initial EEO contact was approximately seven months after the applicable 45-day time limit for timely EEO Counselor contact had elapsed. The instant appeal followed. On appeal, Complainant maintained that his promotion denial has continued and therefore his EEO Counselor contact was timely. In support of his position, Complainant submitted as evidence a June 10, 2022 email wherein the Acting Police Chief confirmed that Complainant had not been converted to GS-8 when the Oakland Outpatient Clinic was moved to the San Francisco VA Health System. The Acting Police Chief further stated that he intended to create a GS-8 position but that he could not guarantee Complainant that he would be placed in the new GS-8 vacancy. Complainant also included an email from his direct, supervisor, a Police Lieutenant, who confirmed that he and another co-worker had been promoted without having to apply as a result of the Agency’s reorganization. The Police Lieutenant’s email also expressed support for Complainant’s EEO claim. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits. 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 calendar days of the date of the matter alleged to be discriminatory or within forty-five days of the effective date of the personnel action. Here, the Agency properly dismissed the formal complaint for untimely EEO Counselor contact. The Commission has adopted a “reasonable suspicion” standard (as opposed to “supportive facts” standard) to determine when the 45-day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered when a complainant reasonably suspects discrimination, rather than after all the facts that support a charge of discrimination have become apparent. Here, Complainant stated that he suspected discrimination as early as October 25, 2021, upon reviewing his pay stubs. Thereafter, Complainant did not initiate contact with the EEO until July 14, 2022, a date that was well beyond the applicable time 45-day time limitation period. Complainant has not persuaded us that he was unaware of the time limit or that he was prevented from timely EEO Counselor contact by circumstances beyond his control. On appeal, we must reject Complainant’s argument that the June 2022 emails from the Acting Police Chief and Police Lieutenant, constitute an ongoing discriminatory practice or pattern. 3 2023001143 A claim will not be time-barred if all acts constituting the claim are part of the same unlawful practice and at least one discrete act falls within the filing period. See Nat’l R.R. Passenger Corp v. Morgan 536 U.S. 101 (2002). However, we read the Acting Police Chief’s June 2022 email informing Complainant that a GS-8 position is unavailable and that he will have to apply when a GS-8 vacancy is created, as a separate and discrete act rather than part of an ongoing practice. See Emerita G. v. Sec. Exch. Comm’n, EEOC Appeal No. 0120151676 (Oct. 1, 2015) (rejecting a similar claim of ongoing denial of promotion we found that the complainant was made aware of the denied promotion in June 2014 but then she made untimely contact with the EEO Counselor in December 2014). Accordingly, for the above reasons discussed above, we AFFIRM the Agency’s final decision, dismissing the formal complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 4 2023001143 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 16, 2023 Date