David E. Bailie, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 29, 2010
0120101068 (E.E.O.C. Jun. 29, 2010)

0120101068

06-29-2010

David E. Bailie, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


David E. Bailie,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120101068

Agency No. 2003-0543-2010100118

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated December 24, 2009, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

In his complaint, Complainant, a former employee of the Agency, alleged

that he was discriminated against based on his age (59) when:

1. he was not hired for the position of Medical Instrument Technician

(Diagnostic Ultrasound), announcement number HA 2009-144C; and

2. he was not hired for the position of Diagnostic Radiologic Technologist

(Interventional/Computed Tomography (IR/CT)), announcement HA 2009-135C.

According to the counselor's report, Complainant learned on July 15,

2009, that he was not hired for either position. The record contains two

letters, each dated August 11, 2009, formally notifying Complainant that

he was not selected for the positions. One advised that no selection

was made from announcement HA 2009-144C, and the second that another

candidate was selected for announcement HA 2009-135C.

Complainant initiated contact with an EEO counselor on October 9, 2009,

about not being hired. According to the contact sheet, he said the

incident occurred on July 15, 2009, and that he applies for numerous

jobs with the Agency but never gets hired. Complainant told the EEO

Counselor that he did not initiate counseling sooner because he did not

want to impede his chances of an application he had with the Popular

Bluff facility. According to the counselor's report, Complainant

indicated that he partly believed he was not hired because of his age

since a younger person was hired under announcement HA 2009-135C.

Thereafter, Complainant filed his complaint. He wrote that he was well

qualified for the position in claim 1 because he left the same job

three months earlier, was in radiology for 40 years, and ultrasound

for approximately four years. He wrote that a day or two after his

application was received, the announcement was canceled. Complainant

wrote that he was interviewed in June 2009 for the position in claim 2,

and that at no point thereafter was notified by the Agency where he was

in the process, even though he had 40 years experience in radiology

and eight or nine years in "CT." Complainant wrote that in the past

two years, two people in their mid-20s were hired in radiology, and the

individual hired to the position in claim 2 was in her early 20s.

In a sheet accompanying his complaint, Complainant explained that the

reasons he did not contact an EEO counselor within 45 calendar days was

because he was not aware of this time limit, he applied for another

position with the Agency at Polar Bluff and did not want to hurt his

chances, and he made a number of calls to the Agency to find out what

happened, but they were not returned.

The Agency dismissed the complaint for failure to timely contact an EEO

counselor. It reasoned that he learned of the alleged discrimination on

July 15, 2009, but did not initiate contact with an EEO Counselor until

October 9, 2009, beyond the 45 calendar day time limit to do so. It found

that as a former employee, Complainant had actual and constructive

knowledge of the 45 calendar day time limit to initiate EEO counseling.

The Agency referred to three separate training sessions Complainant

attended in 2008 where it wrote EEO processing timeframes were discussed,

i.e., Prevention of Sexual Harassment on February 15, 2008; Alternative

Dispute Resolution on July 7, 2008; and No Fear Act on July 23, 2008.

The Agency also referred to EEO policy which it wrote gave EEO timeframes

that were posted throughout the facility in high traffic areas for the

last several years. Two EEO policies it attaches sets forth the above

45 calendar day time limit. The Agency found that Complainant's reasons

for delaying contact with an EEO counselor did not justify him doing

so late.

CONTENTIONS ON APPEAL

Complainant writes that the dates cited in the Agency's final decision

are not accurate, an apparent reference to when he first learned he was

not being hired. Complainant contends that in the second or third week

of September 2009, he heard from former co-workers that that the selectee

for HA 2009-135C was in her mid-20s and had less experience than him,

and that an Agency official said it would be a cold day in hell before

he hired Complainant. He writes that it was at this time that he began

to suspect discrimination. In opposition to the appeal, the Agency

writes Complainant's contention that he did not reasonably suspect

discrimination until September 2009 is new, and is suspicious because

of this. The Agency contends its final decision should be affirmed.

ANALYSIS AND FINDINGS

An aggrieved person must seek EEO counseling within 45 days of

the date of the alleged discriminatory action, or in the case of a

personnel action, within 45 days of the effective date of the action.

29 C.F.R. � 1614.105(a)(1). An agency shall extend the 45 day time limit

to initiate EEO counseling where an individual shows that she was not

notified of the time limit and was not otherwise aware of it. 29 C.F.R. �

1614.105(a)(2). The time limit to seek EEO counseling shall be extended

when an individual shows he did not know and reasonably should not have

known that the discriminatory action or personnel action occurred. Id.

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. 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.

It is the Commission's policy that constructive knowledge will be

imputed to an employee when an employer has fulfilled its obligation

of informing employees of their rights and obligations under EEOC's

regulations. Thompson v. Department of the Army, EEOC Request No. 05910474

(Sept. 12, 1991). The agency has the burden of producing sufficient

evidence to support its contention that it fulfilled its statutory duty

of conspicuously posting EEO information or that it otherwise notified

complainant of her rights. Examples of such support are an affidavit

by an EEO official stating that that there are unobstructed poster(s)

with EEO information, including the 45 calendar day time limit to

contact an EEO counselor posted in the facility where the complainant

worked and identifying the periods of posting accompanied by a copy of

the poster; documentation that the complainant took EEO training where

the 45 calendar day time limit was covered, etc.). We find that the

Agency has met this burden.

Complainant learned that he was not hired on July 15, 2009, or at the

latest, upon receipt of the August 11, 2009, letters notifying him that he

was not selected. Complainant was informed at this time or earlier that

announcement number HA 2009-144C was canceled, and has not persuasively

pointed to anything he learned later which would trigger his forming a

reasonable suspicion of discrimination at a later time. On announcement

number HA 2009-135C, we find that Complainant had a reasonable suspicion

of discrimination upon learning of his non-selection. At intake, he said

that he applies for numerous jobs at the Agency, but never gets hired.

In his complaint, Complainant wrote that he was interviewed in June 2009,

and thereafter was not notified by the Agency where he was in the process,

even though he had 40 years experience in radiology and eight or nine

years in "CT." In a sheet accompanying his complaint he wrote in part that

he delayed initiating EEO contact because applied for another position

with the Agency at Polar Bluff and did not want to hurt his chances.

Based on all this, we find Complainant had a reasonable suspicion of

discrimination when he learned he was not selected, which was more than

45 calendar days prior to his initiating EEO counseling.

The final Agency decision dismissing Complainant's complaint is AFFIRMED.

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 (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 (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

June 29, 2010

__________________

Date

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0120101068

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101068