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