0120161860
10-07-2016
Billi L.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billi L.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120161860
Agency No. 201626665FAA06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 20, 2016, dismissing her 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 worked as a Human Resources Specialist at the Agency's Western-Pacific Regional Office in Lawndale, California.
On March 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), religion (Christian), and color (dark complexion) when:
1. On November 13, 2015, she received lower ratings than she believed she deserved on her FY 2015 Performance Appraisal ("PA" or "2015 PA") and she was not provided adequate justification by her managers for how her ratings were determined.
2. On April 22, 2016 the Agency violated her privacy by emailing her personal information to employees, including management that did not have a need to know.
Complainant's first line supervisor ("S1"), the Supervisory Employment Services Manager, met with Complainant and provided her with her 2015 PA on November 13, 2015. S1 recalled that Complainant was disappointed that she received PA ratings of "meets" instead of "exceeds" on two of the Critical Elements of her position. Complainant told S1 that two of the other Human Resources Specialists on her team "always" received higher ratings than she did, and "repeated at least twice" that one of those coworkers ("C1") was the only white male in the Employment Services Branch, attributing his PA ratings of "exceeds" to racial "favoritism."
When Complainant asked why her performance did not warrant a rating of "exceeds," S1, who had only been in her position for a short time, responded that Complainant would have to ask the previous Supervisory Employment Services Manager ("S2"). S2 was Complainant's first level supervisor for the majority of FY 2015, and she prepared Complainant's 2015 PA. According to Complainant, from 2012 through 2015, S2 exhibited "a pattern of discrimination toward [Complainant] specifically." S2 had since been promoted to Director of the Human Resource Division, but submitted documentation to support Complainant's 2015 PA ratings via S1.
On November 20, 2015, Complainant filed a Step 1 Grievance, which alleged her rating of "meets" was not adequately justified by management, and that she received "discriminatory" documentation and incorrect explanations for her 2015 PA. She also alleged that her work supported and warranted a change from "meeting" to "exceeds." On December 21, 2015, S1 denied Complainant's grievance, finding her 2015 PA ratings "accurate." Complainant pursued a Step 2 Grievance, which was pending when she sought EEO Counseling on December 31, 2015. From the record, it appears Complainant made no reference to a discriminatory motive in her grievances.
The Agency dismissed Complainant's complaint as untimely pursuant to 29 C.F.R. �1614.107(a)(2) and 29 C.F.R. �1614.105(a)(1), finding that Complainant suspected discriminatory intent on November 13, 2015.
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. �1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. �1614.105. Under 29 C.F.R. �1614.105(a)(1), complaints of discrimination must be brought to the attention of an 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 45 days of the effective date of the action. The agency or the Commission may extend the time limit under 29 C.F.R. �1614.105(a)(2) so long as the complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 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 v. United States Postal Serv., EEOC Appeal No. 0120120499 (April 19, 2012)).
Where, as here, 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." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
Claim 1
In the instant complaint, the discriminatory act occurred on November 13, 2015, but Complainant did not initiate contact with an EEO Counselor until December 31, 2015, which is beyond the 45 day limitation period. On appeal, Complainant argues that her complaint was timely because the date of the alleged discriminatory act was November 20, 2015, not November 13, 2015. Specifically, she reasons that she "did not have any information on [November 13, 2015] to determine if any discriminatory acts had taken place," as S1 told her to speak with S2 for an explanation of her 2015 ratings.
We find the Agency provided sufficient evidence to reflect that reasonable suspicion existed on November 13, 2015. The Agency notes that during the November 13, 2015 meeting with S1, Complainant "immediately" commented about C1 receiving preferential PA ratings because of his race; and doubted the accuracy of her "meets" ratings by requesting an explanation and declining to sign her PA without one. The Agency also references Complainant's grievances, in which she confirms that she was aware of the "meets" ratings on her 2015 PA and suspected they were not correct as of the November 13, 2015 meeting. Finally, the Agency calls into question November 20, 2015 as the date Complainant became aware of the alleged discrimination, as Complainant did not provide this date in her timeline of allegations, and there is no reference to discrimination in her grievance, filed the same day as her alleged discovery of discrimination.
We also find that Complainant essentially states in her Formal Complaint that she anticipated that the results of her 2015 PA ratings may indicate discrimination before the November 13, 2015 meeting even took place. She alleges S2 subjected her to ongoing discrimination including lower PA scores than other Human Resources Specialists. As stated in her formal complaint, Complainant alleges that after a disappointing 2014 PA, she met with S2 for an explanation as to why the others, including C1 received higher ratings and awards. S2 allegedly reassured Complainant that there were not enough awards "to go around" and she would have more flexibility with the next PA. Complainant points to her 2015 PA as evidence that "nothing changed" with regard to S2's alleged discriminatory practice of awarding Complainant lower than deserved ratings and giving rise to a reasonable suspicion of discrimination.
Claim 2
Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra.
On April 22, 2016, Agency administrators tasked with disseminating the Agency's Final Decision for the instant complaint submitted the decision along with Complainant's personal information via email using an incorrect mailing list. Moreover, the sender failed to include the Agency's standard confidentiality statement which all staff were required to include in outgoing email messages, in case of an accidental email. Complainant learned about the privacy violation when a coworker who received the email. Complainant properly contacted the ADR Program Manager, the Agency official responsible for the quality of complaints processing on April 26, 2016. On May 3, 2016, the Agency Official responded with a detailed explanation of how the mistake was made, the actions he intended to take to ensure both the sender and the recipient are aware of "appropriate handling of confidential information" assurances that the email was unintentional and an apology. As it appears to be an isolated incident, we find the Agency sufficiently addressed the matter and decline to take further action.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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. Hadden, Director
Office of Federal Operations
October 7, 2016
__________________
Date
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.
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