Carolyn M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.Download PDFEqual Employment Opportunity CommissionOct 25, 20180120172397 (E.E.O.C. Oct. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carolyn M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 0120172397 Agency No. NRCS201700447 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's June 9, 2017 final decision 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 was employed by the Agency as a Program Specialist, GS-11, at its Natural Resources Conservation Service ("NRCS") facility in Jackson, Mississippi. On June 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when: On October 12, 2016, she was not selected for the position of Realty Specialist, GS-12, Jackson, Mississippi (Vacancy Announcement No. NRCS-16-1307-M). 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. 0120172397 2 Complainant alleges that when she became aware of her non-selection on October 12, 2016, she had already been performing the “exact” duties of a Realty Specialist, GS-12, in the Jacksonville office for two years, with “superior” performance ratings, and positive feedback. Complainant suspected the hiring process was unfair when she asked management officials for feedback on why she was not selected. Complainant argues that her superior qualifications were confirmed when she was tasked with training the selectee on the position. Complainant first learned of the selectee’s sex and race when he reported to work on December 12, 2016, which ultimately gave rise to the instant complaint. The Agency dismissed Complainant’s complaint for untimely contact with an EEO Counselor, pursuant 29 C.F.R. § 1614.107(a)(2), § 1614.105(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 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 §1614.105. In turn, 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 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. Here, although Complainant first learned of her non-selection on October 12, 2016, she did not contact an EEO counselor regarding the matter until March 10, 2017, beyond the 45-day limitation period. On this basis, the Agency dismissed the complaint. However, 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). It is well established that an 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). Complainant has persuasively argued that while she suspected that the selection process was unfair, she did not reasonably suspect discrimination until S1’s first day of work on December 12, 2016, when she became aware of S1’s race and sex. However, even starting the limitation period on December 12, 2016, Complainant still did not contact an EEO counselor until March 10, 2017, more than 45 days later. On appeal, Complainant appears to argue that her complaint was timely filed, as she raised her discrimination allegation in an informal grievance filed on December 14, 2016. 0120172397 3 Complainant provides documentation that she observed the time frames stipulated in the grievance process, and that she contacted an EEO Counselor two days after receiving a dismissal of her grievance. We are not persuaded to waive the limitation period on these grounds. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Moreover, the Agency provided training records demonstrating that Complainant was expressly notified of the 45-day limitation period for EEO contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120172397 4 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 October 25, 2018 Date Copy with citationCopy as parenthetical citation