Charlyn P.,1 Complainant,v.Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity CommissionJul 17, 2018
0120181377 (E.E.O.C. Jul. 17, 2018)

0120181377

07-17-2018

Charlyn P.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Charlyn P.,1

Complainant,

v.

Peter O'Rourke,

Acting Secretary,

Department of Veterans Affairs

(Veterans Health Administration),

Agency.

Appeal No. 0120181377

Agency No. 200406372017101718

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 9, 2018, dismissal2 of 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. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-6, Mental Health Services, at the Agency's Charles George VA Medical Center facility in Ashville, North Carolina.

On May 4, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (59), and reprisal for prior protected activity when:

a. On an unspecified date in 2016, she was referred, but not selected, for the position of full-time permanent, Lead Medical Support Assistant, Mental Health Services, GS-7, (Vacancy Announcement No. 637-17-026-SB-1828991-BU, open from October 21, 2016 to November 10, 2016) and was not notified of her nonselection,

b. On an unspecified date in 2016, she was neither referred nor selected, for the position of Supervisor Medical Support Assistant, Mental Health Services, GS-7, Full-Time permanent, (Vacancy Announcement No. 631-16-149-LM-1648461, open from March 9, 2016 to March 29, 2016) and was not notified of her nonselection,

c. On an unspecified date in 2015, she was referred, but not selected for the position of Lead Medical Support Assistant, Mental Health Services, GS-7, Full-Time Permanent (Vacancy Announcement No. 637-16-006-GB-1522658-BU, open from October 2, 2015 to October 22, 2015) and was not notified of her nonselection,

d. On an unspecified date in 2015, she was neither referred nor selected for the position of Supervisor Medical Support Assistant, Health Administrative Services, GS-8, Full-Time Permanent (Vacancy Announcement Nos. 637-15-098-SB-1303027/637-15-098-SB-1302863, open from January 20, 2015 to February 15, 2015) and was not notified of her nonselection,

e. On an unspecified date in 2014, she was referred but not selected for the position of Lead Medical Support Assistant, Mental Health Services, GS-5/6/7, Full-Time Permanent, (Vacancy Announcement No: 637-14-135-CJ-1090412, open from April 8, 2014 to April 14, 2014) and was not notified of her nonselection,

f. On an unspecified date in 2015, she was referred but not selected for one of three openings for the position of Supervisor Medical Support Assistant, GS-7, Part-Time Permanent (Vacancy Announcement No. 637-14-229-LC-1158820-BU, open from July 11, 2014 to July 31, 2014) and was not notified of her nonselection,

g. On an unspecified date in 2015, she was referred but not selected for one of two openings for the position of Program Specialist, Nursing Services, GS-7/9, Full-Time, (Vacancy Announcement No. 637-16-014-GB-1529142-BU, open from October 19, 2015 to November 6, 2015) and was not notified of her nonselection.

Complainant contends that based on her qualifications, she should have been selected for at least one of these positions. She identifies the responding management officials ("RMOs") as the Chief of Mental Health Service, who was the "Selecting Official" for the positions in Claims a, b, c, e, and f, as well as the Clinics Supervisor, the "Selecting Official" for Claim d, and Registered Nurse the "Selecting Official" for Claim g. According to Complainant, this list represents a "pattern of disparate treatment."

The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed.

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 �1614.105. 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 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 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).

Here, Complainant initiated contact with an EEO Counselor on January 31, 2017. The Agency properly found that, for the contact to be timely, the alleged discrimination must have occurred no more than 45 days earlier, which fell on December 17, 2016. Given the time elapsed from the dates of Claims "b" through "g," particularly as most of the positions were within Mental Health Services, where Complainant already worked, we find it likely that reasonable suspicion for those claims arose more than 45 days prior to Complainant's first EEO contact.

However, as for Claim "a", we find insufficient evidence to support a reasoned determination as to timeliness. 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." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEQC Request No. 05920506 (Aug. 25, 1992). Additionally, the Agency has the burden of providing evidence and/or proof to support its final decisions. Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993) see also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). The Final Agency Decision ("FAD") cites November 10, 2016 as the start of the 45-day limitation period because that was the closing date of the vacancy in Claim a. However, according to the EEO Counselor's Report, the Agency did not select a candidate for the position until at least November 18, 2016. Moreover, Complainant asserts, and the Agency does not contest, that she did not receive notification of her non-selection. The record does not establish the date Complainant learned that the selectee had been chosen rather than herself. Without this evidence, the record fails to establish the start of the 45-day limitation period for Claim a. As such, we conclude the Agency failed to meet its burden of supporting its dismissal of this claim.

CONCLUSION

Accordingly, the Agency's final decision dismissing Claims b though g is AFFIRMED, and the Agency's dismissal of Claim a is REVERSED. Claim a is hereby REMANDED for further processing in accordance with this Decision and the ORDER below:

ORDER (E0618)

The Agency is ordered to process the remanded Claim a 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 was issued. 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 was issued, 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.

As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)

Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.

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 (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. 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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

July 17, 2018

__________________

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.

2 FAD initially issued on July 7, 2017, but Complainant did not receive it, so it was reissued.

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