[Redacted], Cornell S, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 12, 2021

Appeal No. 2021001269 (E.E.O.C. Apr. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cornell S,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001269 Agency No. 2003-0549-2020105870 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 3, 2020, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as a Materials Hander Supervisor, WG-6, at the Agency’s VA Dallas Medical Center in Dallas, Texas. On August 18, 2020, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On September 29, 2020, Complainant filed a formal EEO complaint alleging he was subjected to discrimination, including a hostile work environment, based on race (Black) when: 1. In September/October, 2017, Complainant was not selected for the position of Human Resource Specialist (Labor/Employee Relations) under Vacancy Announcement number AH-17-BDJ-1981240. 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. 2021001269 2 2. On May 23, 2018, Complainant alleged that he was not allowed to talk to the Facility Director regarding the inaccuracy of the accusation he pushed the Inventory Management Specialist (IMS) and was charged with assault. 3. On September 4, 2018, the Chief of Supply Chain Management Service issued Complainant a seven-day suspension, effective September 10, 2018 through September 16, 2018. 4. On December 19, 2018, the Chief of Logistics Officer of Supply Chain Management Service (Logistics Chief) failed to respond after Complainant notified him of the IMS’ harassing behavior including threatening to file a harassment complaint if he spoke to her. 5. On April 17, 2019, the Logistics Chief failed to respond after Complainant notified him of the IMS’ harassing behavior in the warehouse. 6. On April 19, 2019, the Logistics Chief issued Complainant a No Contact Order regarding the IMS. 7. On May 17, 2019, the Logistics Chief issued Complainant a No Contact Order regarding the IMS and a co-worker. 8. On May 17, 2019, the Logistics Chief issued Complainant a Supply Chain Management Service Letter of Expectations. 9. On July 2, 2019, Complainant was not selected for the position of Human Resource Specialist (Labor/Employee Relations) from an Internal Vacancy Announcement (no vacancy number provided). 10. On August 15, 2019, Complainant alleged he was not allowed to talk to the Facility Associate Director (FAD) because he was told the FAD may be biased with any information Complainant tells him. 11. On September 19, 2019, Complainant was non-selected for the position of Chief Supply Chain Officer (no vacancy number provided).2 2 On appeal, Complainant asserts that claim 11 occurred much earlier (on September 19, 2017), not September 19, 2019, as stated in the Agency’s final decision. Our review of the formal complaint indicates, in that document, Complainant stated that the non-selection occurred on September 19, 2019. 2021001269 3 In its December 3, 2020 final decision, the Agency dismissed the formal complaint on three separate grounds. First, the Agency determined that Complainant had filed a prior EEO complaint (Agency No. 2003-0549-2017105073) alleging a racially motivated hostile work environment but withdrew this complaint on September 18, 2017. Therefore, the Agency determined that any alleged incidents that occurred before September 18, 2017, were dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for raising matters previously decided by the Agency. Second, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that the last alleged incident occurred on September 19, 2019. However, Complainant’s initial EEO Counselor contact was on August 18, 2020, which the Agency found to be beyond the 45-day limitation period. Finally, the Agency dismissed a matter which Complainant classified as a separate claim of discrimination in his formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency asserted that Complainant alleged that on August 11, 2020, he became aware that he was not promoted since February 2017 because his supervisor did not use the Veterans Recruitment Appointment (VRA) Authority to promote him. The Agency determined that Complainant had not demonstrated that he was an aggrieved individual and dismissed this claim for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. 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 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. Here, it is undisputed that Complainant first sought EEO counseling on the matters comprising this complaint on August 18, 2020. However, the latest alleged discriminatory event occurred no later than September 19, 2019, and well beyond the 45-day limitation period. Complainant argues on appeal that he did not reasonably suspect discrimination until August 11, 2020, when he learned that his supervisor did not use VRA authority to promote him to the GS 12 level even though his supervisor selected two white veterans to a higher grade under VRA authority. As such, Complainant asserts he timely contacted an EEO Counselor on August 18, 2020. 2021001269 4 Complainant further argues his August 11, 2020 understanding of his supervisor’s alleged actions state an independent claim and should have been included as one of the allegations supporting his claim of discriminatory harassment in the Agency’s final decision. As an initial matter, we find no support for Complainant’s argument that his alleged discovery on August 11, 2020, that his supervisor had promoted other employees using VRA authority but not Complainant constituted a separate act of discrimination and should be part of his complaint. We note that Complainant has not identified specific instances, beyond the three non-selections (between 2017 and 2019) identified in his complaint, where he was not selected for a promotional opportunity. Instead, we consider Complainant’s assertions concerning his first learning on August 11, 2020, of the alleged discriminatory use of the VRA process as information provided in support of Complainant’s claim that he did not develop reasonable suspicion of discrimination until that date, and not as an actual separate claim of discrimination. We are also unpersuaded by Complainant’s argument that he did not develop reasonable suspicion of discrimination until August 11, 2020. Complainant has alleged that he was being discriminatorily harassed by the same management officials since 2018, albeit centering on accusations of assault, the no-contact orders, disciplinary action, and management’s refusal to listen to Complainant. He also had raised claims of discrimination in a previous complaint. In this alleged atmosphere of discrimination, it is highly unlikely that Complainant did not have suspicion of continued discrimination with regard to his not being selected for three promotional opportunities. Accordingly, we are affirming the dismissal of the complaint as untimely raised. As we are affirming the dismissal for untimely EEO counselor contact, we find no reason to address the Agency’s alternate grounds for dismissal. CONCLUSION The Agency’s decision dismissing the complaint as untimely raised is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021001269 5 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001269 6 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 April 12, 2021 Date