0120100069_rev
08-25-2011
Scott Willson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Scott Willson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100069
Agency No. 200H06422009103687
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 14, 2009, 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
On August 10, 2009, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of disability
(disabled veteran)1 and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. on June 26, 2009, Complainant realized that he would not be selected
for the position of Social Worker GS-85-1 pursuant to Vacancy Announcement
211-08; or the position of Social Worker GS-85-11 pursuant to Vacancy
Announcement Number 314-08.
The record further indicates that following the Agency’s receipt of
Complainant’s formal complaint, Complainant was asked to provide
additional information regarding the vacancy announcements and the
specific claims being raised. In correspondence from Complainant
dated September 8, 2009, Complainant also raised concerns regarding
the following:
o on November 29, 2007, not selected for the position of Social Worker
GS-185-11, under Announcement Number 215-07;
o on April 10, 2009, not selected for the position of Social Worker,
GS-185-11, under Announcement Number 211-08;
o not selected for the position of Supervisory Social Worker at the
Philadelphia Vet Center (date and announcement unspecified);
o not selected for the position of Social Worker for the Philadelphia
Vet Center, announcement numbers 74-06 and 75-06; and
o agreement to expunge negative information from his personnel folder
was not adhered to by his former supervisor.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The Agency reasoned
that the alleged discriminatory non-selection occurred on April 10,
2009, but Complainant did not seek EEO counseling until June 26, 2009,
beyond the 45-day limitation period. The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that in Complainant’s brief
in support of his appeal, he indicates, through counsel, that his appeal
before the Commission is of the Agency’s “dismissal concerning his
alleged discriminatory non-selection for the position of Social Worker
under Vacancy Announcement No. 211-08.” In that regard, the Commission
will address only claim 1 as identified above.
Complainant challenges the Agency’s failure to select him for the
position of Social Worker advertised under Vacancy Announcement
No. 211-08. The Agency dismissed Complainant’s claim on the
grounds that he failed to contact an EEO Counselor in a timely manner.
According to the Agency, the alleged discriminatory event occurred on
April 10, 2009, when Complainant was notified in a letter that he was
referred for consideration for the position but not selected to fill
the vacancy. In both a letter to the Agency dated September 2, 2009,
as well in his appeal, Complainant asserts he never received the April
10, 2009 letter. The record further indicates that Complainant did not
initiate contact with an EEO Counselor until June 26, 2009.
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 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. 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 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.
A review of the record, including emails from officials in the Agency’s
Human Resources department, reveal that at the time of Complainant’s
application for the position at issue, the individual responsible for
sending out notifications regarding the status of the vacancy, no longer
works for the Agency. The record contains a copy of an email dated July
12, 2009, indicating the following: “when the specialist who worked
Social Worker [selections] left, she put several vacancy announcement
folders in a box which we did not realize.” Another email from officials
in the Agency’s Human Resources office states that “it does not
seem that the applicants were notified.” This statement appears
to be consistent with Complainant’s statement in his September 2,
2009 letter to the Agency where he says he was told that “the person
who was supposed to send out the letters was no longer working in the
HR section.”
Based on a review of the record in this matter, we find that the
Agency has failed to demonstrate that Complainant was notified
of his non-selection for the position at issue on April 10, 2009,
thereby starting the 45-day period for seeking EEO counseling in this
matter. Where there is an issue of timeliness, “[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness.” Guv, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition,
in Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that “the agency has the burden of
providing evidence and/or proof to support its final decisions.” See
also Gens v. Department of Defense, EEOC Request No. 05910837 (January
31, 1992). After careful review of the record, we disagree with the
Agency's dismissal regarding timeliness.
We find that the Agency failed to show that Complainant initiated EEO
contact in an untimely manner. Accordingly, we REVERSE the Agency's
final decision dismissing Complainant's complaint and REMAND the matter
to the Agency for further processing consistent with this decision and
the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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
August 25, 2011
__________________
Date
_______________________________
Equal Opportunity Assistant
o 1 We note here that in its final decision, the Agency correctly
dismissed disabled veteran as a basis. The Commission has consistently
held that veterans' preference is not an enumerated basis for filing
an EEO complaint, and that complaints concerning veterans' preference
are not within the purview of EEOC Regulations. See Devereux v. United
States Postal Service, EEOC Request No. 05960869 (April 24, 1997):
Rowe v. Department of Commerce, EEOC Appeal No. 0120073252 (October 11,
2007); Glenn v. Department of Veterans Affairs, EEOC Request No. 05910927
(February 21, 1992).
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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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