EEOC Appeal No. 0120150632
05-05-2015
Complainant v. Dep't of the Air Force
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120150632
Agency No. 5E0J14005
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 4, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was an applicant for employment at the Agency's facility located at Laughlin Air Force Base, Texas.
On August 22, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the basis of disability when:
a. On or about January 17, 2014, and again on February 1, 2014, an Agency official rendered an incorrect and misleading medical judgment regarding Complainant's medical condition and his ability to perform the duties related to the position of Historian, GS-1070-11, at Laughlin AFB, Texas.
b. In March 2014, an Agency official withdrew a conditional offer of employment for the Historian position, failed to engage in the reasonable accommodation interactive process, did not provide an official memorandum of denial, and failed to provide notice of rights to file an EEO complaint.
c. In March 2014, an Agency official made an erroneous judgment about the need for a medical waiver.
d. In March 2014, an Agency official had knowledge of special preferences extended to a selected disabled candidate.
e. In March 2014, an Agency official ordered the withdrawal of Complainant's conditional offer of employment.
f. In March 2014, an Agency official purposely and willfully withheld factual information regarding the availability of fixed military treatment support for Historian deployment locations.
g. On March 13, 2014, an Agency official violated federal code by not following guidance regarding referral of disabled veterans. Complainant further contends that the Agency official advised that Complainant's requests for reasonable accommodation were denied.
h. On March 13, 2014, an Agency official made false and incorrect conclusions about Complainant's medical suitability for the Historian position and rendered a legal opinion that was used as the basis for the conditional offer being withdrawn.
i. On March 17, 2014, an Agency official created a false and misleading impression of the Historian career field in order to support previous decisions to find Complainant medically disqualified. Complainant further contends that the Agency supported a personal prejudice towards disabled employees.
On November 4, 2014, the Agency issued a final decision, dismissing the formal complaint on the grounds of untimely EEO Counselor contact. The Agency determined that Complainant first contacted an EEO Counselor May 7, 2014, regarding his concerns that commenced on January 17, 2014, with the most recent alleged discriminatory event occurring on March 17, 2014. The Agency therefore found that the May 7, 2014 initial EEO counselor contact was beyond the forty-five day limitation period for making timely contact.
The instant appeal followed. On appeal, Complainant argues that he did not initiate EEO contact on May 7, 2014, as determined by the Agency. Instead, Complainant argues that he first contacted the Agency on April 7, 2014 concerning his non-selection, and the Agency's determination regarding his medical condition. In support of his position, Complainant has submitted copies of emails exchanged between him and the Agency. Therein, Complainant refers to contact he made with an Agency human resources official on April 7, 2014, in response to learning that he had not been selected for the Historian position. The record also contains an email dated April 29, 2014, from an Agency official acknowledging the Agency's need to respond to Complainant's "email and his concerns." The Agency email also indicates that the response should be provided no later than May 6, 2014, which is the day before the Agency contends that Complainant first contacted an EEO Counselor.
ANALYSIS AND FINDINGS
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.
The Agency's dismissal of the complaint for untimely EEO counselor contact was improper. In reaching this conclusion, we are persuaded by the record, and by Complainant's submissions on appeal, that he contacted the Agency regarding the Agency's medical determination and his non-selection for the position at issue, as early as April 7, 2014.
We acknowledge that the April 2014 contact reflects that Complainant contacted an Agency human resources official about his concerns, rather than an EEO Counselor. However, we note that the EEOC Management Directive 110, Section 2-1, at footnote one, states that "the Commission consistently has held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, ...and by exhibiting an intent to begin the EEO process." See Kinsa v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999). In this case, Complainant was an applicant for employment, without the benefit of EEO information and training afforded Agency employees. Under these circumstances, we find that his contact with a human resources official to lodge his complaints was adequate to put the Agency on notice of his concerns and refer him to the EEO process. Finally, we note that on appeal Complainant also contends that any allegations occurring outside of the relevant time limitations should properly be considered as background evidence in support of his claim.
Upon review of the particular circumstances of the instant matter, we find that the record presents persuasive and sufficient evidence that Complainant's EEO contact should be deemed as timely made.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108et 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
May 5, 2015
__________________
Date
2
0120150632
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150632