0120170427
05-10-2017
Isadora G.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isadora G.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170427
Agency No. DON160001802758
DECISION
Complainant timely appealed with this Commission from the Agency's October 21, 2016 dismissal 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst (GS-09) at the Agency's Bureau of Medicine and Surgery ("BUMED") Naval Hospital in Pensacola, Florida.
On September 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (filing an EEO complaint against a former supervisor in September 2014) when:
1. On June 9, 2016, she learned that the Human Resources Specialist (GS-09/11) position she declined was being serviced from Jacksonville, Florida;
2. On October 30, 2015, the Acting Satellite Manager ("M1") deterred her from accepting a promotion to Human Resources Specialist (GS-09/11) by changing the location from Pensacola to Jacksonville, Florida;
3. On July 26, 2016, she was "unofficially" verbally counseled by her supervisor for not processing an action; and
4. On or about March 11, 2016 she became aware of an opening for an HR Specialist (GS-12) at her location in Pensacola, that was deliberately categorized in a pay band outside of her hiring range.
In 2015, Complainant, at the time an HR Assistant (GS-07) at BUMED Pensacola, responded to an HR Specialist (GS 09/11) job posting, which stated, "this vacancy may be filled in one of the following locations: Jacksonville, FL or Pensacola, FL." Complainant specified in her application that she was applying for the position in her current location of BUMED Pensacola As her spouse was an active duty Marine stationed in Pensacola, moving to Jacksonville was not an option. Complainant was selected for a panel interview, and in October 2015, the Director of Human Resources ("H1") made Complainant a tentative offer for the HR Specialist position.
On October 30, 2015, the Acting Satellite Manager based in Jacksonville ("M1") called Complainant and informed her that the position she had been tentatively offered would primarily service BUMED Jacksonville. If Complainant were to accept the position, she would be required to move to Jacksonville within three to six months. Before M1 was promoted to Acting Satellite Manager, she had been Complainant's second level supervisor. Complainant confided in M1 extensively about her EEO Complaint (the basis of the instant retaliation claim), which had just been resolved in August 2015. Complainant asked M1 if the location change had anything to do with her previous EEO activity and M1 said it did not, and suggested Complainant contact H1 about her concerns.
On November 2, 2015 Complainant received a formal offer for an HR Specialist position based in Jacksonville, FL. On November 3, 2015, Complainant emailed H1 and declined the offer, and instead accepted a "dead-end" lateral promotion Management Analyst (GS-09) in order to remain in BUMED Pensacola. Per M1's suggestion, Complainant sent another email to H1, alleging the change in location to Jacksonville BUMED was based on retaliation. Complainant pointed out that much of the HR Specialist's work is done remotely, as video and teleconferences were the "way we've always done it." H1 did not respond, and M1 told Complainant that she did not feel appropriate responding because she was on the "cc" line and the email was addressed to H1. Complainant alleges that M1 reassured her again that there was no discriminatory motive behind the decision to base the HR Specialist position in Jacksonville.
Complainant states in the record that she believed M1 until June 9, 2016, when the candidate who accepted the HR Specialist position Complainant had declined ("C1"), sent an email to BUMED Pensacola, including Complainant and her coworkers. In it, C1 states: "I wanted to take this opportunity to introduce myself as your new servicing HR Specialist for Staffing & Classification... I am located in Jacksonville, FL but assure you I am only on email or a phone call away." Complainant found the email was proof that the HR Specialist position could be conducted remotely, asking why, if an employee in Jacksonville could service Pensacola, it could not be the other way around. After this revelation, Complainant contacted an EEO Counselor, alleging that M1 deliberately dissuaded her from accepting the HR Specialist position as retaliation for her prior EEO activity.
On March 11, 2016, the HR Specialist servicing BUMED Pensacola ("S2") announced that she would be moving to the position of HR Staffing and Recruiting Specialist and would hire a replacement for her previous position. Complainant alleges that Management, aware that she wanted an HR Specialist position based in BUMED Pensacola, effectively excluded her from consideration for the position by posting the vacancy at the GS-12 level. Although S2 officially left the HR Specialist position on March 20, 2016, Complainant was unaware of the GS-12 level or that any steps had been taken to fill the position until the week of September 12, 2016.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
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. Under �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the Commission may extend the time limit if complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission. It is undisputed that Complainant was aware of the 45 day limitation period during the relevant time frame, yet each of her four claims was raised more than 45 days after the alleged discriminatory event occurred.
On appeal, Complainant declined to pursue Claim 3 further, explaining that she included it for consideration as background information only. However, she argues that Claims 1, 2, and 4 are timely because she raised each claim within 45 days of experiencing reasonable suspicion of discrimination. 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)
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." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
Claims 1 and 2
Claims 1 and 2 both concern Complainant's allegation that the Agency was motivated by discrimination when it offered her an HR Specialist position based in Jacksonville instead of Pensacola, even though she could have performed the position remotely. On appeal, Complainant explains that she "initially" suspected discrimination because the previous Satellite Manager, who posted the vacancy announcement, told her that the responsibilities could be performed remotely, from either location. She also found it suspicious that it was not until she went through the hiring process and received a tentative offer that she learned the HR Specialist would not be based in Pensacola. The timing, coupled with her knowledge that the position could be performed remotely, and that according to Complainant, "everyone in [her] chain of command and all of [her] co-workers" knew that she could not move away from Pensacola, gave rise to reasonable suspicion when she received the formal offer on November 2, 2015.
In the email Complainant sent to H1 at M1's suggestion, she accuses H1 of "changing the rules in the middle of the game" when the formal job offer was for an HR Specialist based in Jacksonville only. She also accuses H1 of deliberately creating a scenario where she could offer Complainant a job without Complainant accepting it, so that H1 could "wash [her] hands of [Complainant]." Complainant points out what she perceives to be a lack of necessity for a Jacksonville based HR Specialist, arguing that there is already a Jacksonville-based HR Specialist, who exclusively services Jacksonville, yet the HR Specialist currently servicing Pensacola BUMED is overwhelmed and requires support. Finally, Complainant identifies two HR Specialists whose entire jobs are performed remotely, each serving clinics in multiple states.
Complainant recounts that shortly after she declined the position, her coworker told her that it was H1's idea to base the HR Specialist in Jacksonville (contradicting M1's statements in the record). H1 did not respond to Complainant's email, and M1 declined to follow up. Complainant's EEO Complaint alleging over a year of harassment was resolved only months before, yet Complainant decided not to contact an EEO Counselor because M1 told her again that there was no discriminatory motive, and she "accepted everything [M1] told [her] as the truth." We find reasonable suspicion continued to exist regardless of M1's alleged assurances.
Claim 4
Upon review, we determined that Claim 4 did not require a reasonable suspicion analysis. A fair reading of the complaint shows that Claim 4 concerns a personnel action, namely the hiring of an HR Specialist (or non-hiring of Complainant). A personnel action for hiring becomes effective the date the position is filled. On March 11, 2016, Complainant and her coworkers were only informed that S2 intended to fill the vacancy, which Complainant understood to be within her hiring pay grade. However, Complainant did not receive any additional information, and did not know the position had been changed to a GS-12 until it was already filled.
We find alleged Complainant's lack of knowledge about the position before it was filled to be reasonable. The Agency has not offered any evidence, such as a job announcement, that would show Complainant knew or should have known that the vacancy left by S2 was outside her pay grade before September 12, 2016. Therefore, the limitation period was triggered on the day Complainant became aware the personnel action occurred, sometime within the week before September 18, 2016. Complainant contacted an EEO Counselor about the matter on September 22, 2016, well within the 45 day limitation period. Claim 4 is timely.
New Issues Raised on Appeal
Complainant alleges that since filing her formal complaint on September 22, 2016, she has been subjected to retaliatory harassment through what she describes as an "ongoing pattern" of discrimination, particularly by M1 and S2. On October 12, 2016, S1 and the HR team from Jacksonville came and met with S2, Complainant, and others on the HR Team for resolution. Complainant alleges that S1 commented "we have never had this tension before now," in a way that implied, and which everyone in the room understood meant that the tension was caused by Complainant. Complainant further alleges that because she filed the instant complaint, S2 also furthers the implication that Complainant is the source of conflict and tension between the two offices. However, because Complainant did not include these reprisal claims in her formal complaint, they will not be adjudicated in this decision. If Complainant wishes to pursue these claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Claims 1, 2, and 3 is AFFIRMED, and the Agency's final decision dismissing Claim 4 is REVERSED.
Claim 4 is hereby REMANDED for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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.
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 (M0416)
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 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. The requests 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 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 (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
May 10, 2017
__________________
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 We decline to review Complainant's allegation that the Agency also violated the Whistleblower Protection Act, as it is outside the jurisdiction of this Commission. See Reavill v. Dep't of the Navy, EEOC Appeal No. 05950174 (Jul. 19, 1996).
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