0120182624
09-28-2018
Mohammad M.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mohammad M.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182624
Agency No. 2004-0688-2018102450
DECISION
On July 25, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 13, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Maintenance Mechanic Work Leader, WG-9, at the VA Medical Center, Facility Management Services, in Washington, DC.
On April 27, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race/color (African-American/Black) when, on December 18, 2017, he was notified that he was not selected for promotion to the position of Maintenance Mechanic Supervisor, vacancy announcement FQ-17-ATL-2014209-BU, located in his facility.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on February 14, 2018, beyond the 45-calendar day time limit. The instant appeal followed.
Complainant argues that he had no reason to believe he was discriminated against until the Agency responded to the Freedom of Information Act (FOIA) request he filed on December 20, 2017. He received a partial FOIA response on February 5, 2018, and after filing an FOIA appeal, a much fuller response on March 27, 2018. Complainant submits correspondence on his FOIA request. It reflects that on December 20, 2017, he requested, inter alia, the following information as it pertained to the selection for the above Maintenance Mechanic Supervisor: (1) points preference for all candidates who made certification, (2) scores of all those interviewed, (3) scores by all panel raters on the selectee and himself, (4) race/national origin for all candidates interviewed and the selectee, (5) previous position of the selectee, and (6) the selecting official's justification for choosing the selectee.
On the initial EEO contact interview sheet, the EEO office documented that Complainant explained that he delayed contacting an EEO counselor until he learned in response to his FOIA request the identity of the selecting official. Complainant also relayed that he learned that the selectee (White) scored lower than him.
ANALYSIS AND FINDINGS
EEOC Regulation 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 Commission has adopted a reasonable suspicion standard to determine when 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.
We find that Complainant's December 20, 2017, FOIA request shows he had a reasonable suspicion of discrimination at that time. While Complainant received additional facts on February 5, 2018, and much more on March 27, 2018, these were facts that supported his prior reasonable suspicion.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
September 28, 2018
__________________
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.
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