0120092857
10-02-2009
Emmanuel Irvin, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.
Emmanuel Irvin,
Complainant,
v.
John McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092857
Agency No. ARHQOSA09MAR00897
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 9, 2008, dismissing his 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. In his complaint, complainant alleged that he was subjected to
discrimination based on his race (black) when he was not competitively
selected for the position of Supervisory Safety and Occupational Health
Care Specialist, YC-0018-3.
The FAD dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that complainant sought EEO counseling on March
6, 2009, beyond the 45 calendar day time limit after he had a reasonable
suspicion of discrimination on or about August 25, 2008.
The agency first advertised the position under vacancy announcement
NEHT08496895 in late January and early February 2008. A referral
list of eligible candidates was referred to the selecting official
in February 2008. On March 28, 2008, the selecting official (black)
returned the referral list without making a selection. He wrote thereon
that the candidates lacked headquarters level agency experience in both
safety and staff work generally.
In April 2008, the agency reannounced the above position under vacancy
announcement NEHT08496895R1. Complainant's name was not included on the
referral list because of an admitted administrative error by the agency,
and he was not selected. Complainant filed an appeal from the Merit
Systems Protection Board (MSPB) alleging a violation of the Veterans
Employment Opportunities Act of 1998 when he was not selected. The
parties entered into a settlement agreement resolving the MSPB appeal.
A candidate was selected from the second referral list. Complainant
concedes that he learned who was selected on August 21, 2008, and learned
his race was white by mid-September 2008. Complainant contended that he
did not suspect discrimination until February 11, 2009. He explained
that through his MSPB appeal, he received the first referral list
and the selecting official's explanation for returning it on February
11, 2009. Complainant indicated that the list had four black and six
white candidates, and two black candidates had headquarters level agency
experience in both safety and staff work generally. Complainant contended
that he also had relevant experience. Complainant contended that the
selectee was lesser qualified.
The FAD found that complainant reasonably suspected race discrimination
by August 25, 2008. On August 25, 2008, complainant emailed what
he referred to as an open letter to Army for Environment, Safety and
Occupational Health personnel. He wrote that it was not surprising that
the agency chose the selectee, who he termed as retired military, over
a career program candidate.1 He wrote that it was surprising that there
was no oversight in the selection process of upper level career program
positions to ensure the hiring of well qualified career program candidates
and an affirmative outreach program to maintain a diverse workforce.
Complainant concluded that retired military had a strong advantage over
career program candidates. He later wrote that at the time he sent
this email, he suspected the first referral list was returned so the
selecting official could get the selectee on the list. Complaint wrote
in his complaint that the selection of a lesser qualified white candidate
was a continuation of personal and institutional discrimination in the
agency's Safety Center and Army Safety Office. He wrote that there was
a pattern of discrimination that served as a barrier to upward mobility
for blacks to serve as a senior supervisor.
On appeal, complainant reiterates arguments made below. In referring
to the lack of oversight to ensure an affirmative outreach program to
maintain a diverse workforce, complainant refers to agency guidance,
which he includes in his appeal package. The guidance refers to EEO
accountability. Complainant contends that the August 25, 2008, email
was meant to redress the hiring of retired military over career program
personnel. He argues that his discrimination complaint concerns the
first referral list being returned without a selection, and hence the
later selection of a white candidate from the second referral list was
not a factor in his discovering discrimination. In opposition to the
appeal, the agency argues that the FAD should be affirmed.
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) & .107(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. 29 C.F.R. � 1614.105(a)(2).
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.
Complainant argues that he was not aware of race discrimination until
February 11, 2009, when he received the first referral list and the
selecting official's explanation for returning it, which complainant
contends was false. We find that complainant knew or should have
known of discrimination by mid-September 2008, when he concedes he
learned the selectee's race was white. In his email dated August 25,
2008, complainant wrote that there was no oversight in the selection
process of career program positions to ensure an affirmative outreach
program to maintain a diverse workforce. While complainant contends
this email refers to the agency's preference for military retirees
over career program candidates, this language indicates complainant
was also concerned with EEO matters. In fact, on appeal complainant
connects the language to an agency policy document that refers to EEO
accountability. Complainant wrote that when he sent the August 25, 2008,
email, he suspected the first referral list was returned so the selecting
official could get the selectee on the list. Complainant contended in
his complaint that the selection of a lesser qualified white candidate
was a continuation of personal and institutional discrimination in the
agency's Safety Center and Army Safety Office. He wrote that there
was a pattern of discrimination that served as a barrier to upward
mobility for blacks to serve as a senior supervisor. All this taken
together demonstrates complainant had a reasonable suspicion of race
discrimination by mid-September 2008, and gained what he considered to
be supportive facts thereof on February 11, 2009.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
October 2, 2009
__________________
Date
1 Complainant, however, was active duty in the United States Army from
October 1979 to February 1992, and in the reserves from February 1992
to September 2001.
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0120092857
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092857