0120161544
06-16-2016
Martin S,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Martin S,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120161544
Agency No. DON165526201168
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 11, 2016, 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. and reprisal for protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an Applicant for the position of Lead Contract Specialist at the Agency's Southwest Regional Maintenance Center facility in San Diego, California
On March 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of age (70) and reprisal for prior protected EEO activity under an unspecified EEO statute when on August 31, 2015, Complainant received an email from USAJOBS stating he was "deemed eligible" for a position he applied for, but did not receive any further notifications and was not selected.
Between May 20, 2015 and May 28, 2015, the Complainant applied for the position of Lead Contract Specialist, Job Announcement Number: NW51102-13-1411577PU083692, via the USAJOBS.gov online application process.
On August 31, 2015, Complainant received notification from USAJOBS that he was "deemed eligible" for the position and would be referred to the hiring official for consideration.
Complainant never received any further notification or updates from USAJOBS about the position, so he filed a Freedom of Information Act (FOIA) request on December 8, 2015, to inquire about the status of his application for the position as well as other applications he had filled out for other federal agencies.
On January 20, 2016, Complainant received a response to his FOIA request from the Office of Civilian Human Resources (OCHR) in Washington, D.C. It was on this day that an employee at OCHR informed him that he was not selected for the positions he applied for on USAJOBS.
Complainant believes he was "superiorly qualified" and the reasons for his non-selection are his age and prior EEO activity.
The Agency dismissed Complainant's complaint for failure to comply with the applicable time limits contained in 29 C.F.R. Part �1614.105. The Agency found Complainant's EEO contact date was February 11, 2016, and thus untimely. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulations 29 C.F.R. � 1614.107(a)(2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105. Section 1614.105(a)(l) provides that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action within 45 days of the effective date of the action.
The Agency found that alleged discriminatory action occurred on August 31, 2015, when the Complainant received notification from USAJOBS he was "deemed eligible," but he did not initiate contact with an EEO Counselor until February 11, 2016, which is beyond the forty-five (45) limitation period.
The Commission has adopted a reasonable suspicion standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Appeal No. 01965648 (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.
The Agency improperly dismissed Complainant's claim because the Agency incorrectly believed Complainant formed a reasonable suspicion of his non-selection on August 31, 2015, when it should have been January 20, 2016. The record reveals that Complainant did not become aware of his non-selection until an employee from OCHR responded to his FOIA request. It was at this point Complainant gained the requisite reasonable suspicion of his non-selection. Using the January 20, 2016 date as the date when Complainant formed a reasonable suspicion of discrimination for the alleged adverse action against Complainant, he did make contact with an EEO Counselor within the required forty-five (45) day limit.
Also relevant to the inquiry is whether Complainant had prior knowledge or suspicion of discrimination and the effect of this knowledge. Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern).
Prior to his conversation with the employee from OCHR on January 20, 2016, Complainant was unaware of the status of his application. This is supported by the fact he filed a FOIA request to learn about the disposition of his application. Complainant could not have had the required reasonable suspicion before this date as the Agency suggests. The notification Complainant received on August 31, 2015, would not give Complainant reasonable suspicion of his non-selection, but instead, would have likely led him to believe he was still a candidate for the position when he was "deemed eligible," thus the Agency began tolling the clock for contact too soon. Complainant lacked both reasonable suspicion and prior knowledge of his non-selection.
CONCLUSION
Accordingly, we REVERSE the Agency's dismissal decision and REMAND the complaint to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
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 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 (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 (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 (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
June 16, 2016
__________________
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
0120161544
5
0120161544