0120121616
07-20-2012
Robin Horn, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robin Horn,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121616
Agency No. 200H-0541-2012-100470
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 3, 2012, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Employee Labor Relations Assistant, GS-8 at the Agency's Medical Center facility in Brecksville, Ohio.
Complainant had filed an EEO complaint on January 20, 2011 (hereinafter referred to as the "prior complaint"), alleging race and age discrimination. She asserts that, at the time, she attempted to amend the prior complaint to include another non-selection that occurred in January 2011. However, she asserts that the EEO Office failed to amend her pending complaint to include the new non-selection issue.
Complainant contacted the Case Manager again regarding the prior complaint in an attempt to add the January 2011 non-selection as well as an issue concerning a new vacancy announcements posted in March 2011. On May 26, 2011, Complainant submitted another amendment request to the Case Manager. The Agency declined to add the amendments to the prior complaint.
The prior complaint was investigated and, subsequently, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant filed a request with the AJ to amend her complaint to include the January 2011 non-selection. On October 14, 2011, the AJ ordered Complainant to raise the issue with the Agency's EEO Office for counseling.
Therefore, on November 4, 2011, Complainant contacted the EEO Office. Following counseling, on December 14, 2011, Complainant filed a formal complaint (the complaint at issue in this appeal) alleging that the Agency subjected her to discrimination on the basis of reprisal when:
1. In December 2010, Complainant applied for the position under Vacancy Announcement MPA-11-046-417976. Complainant learned that she was disqualified for the position because her SF-50 did not load properly into the system. She received notice of the non-selection in January 2011.
2. In March 2011, Complainant learned that two positions were posted at the GS-12 level. Complainant believed that they were posted at that level so she could not apply.
The Agency responded to Complainant's formal complaint by asking her to provide additional information. Specifically, by letter dated January 19, 2012, the Agency stated that Complainant had filed a prior EEO complaint which raised the non-selection in Vacancy Announcement MPA-10-032-367454, which had similar dates to the non-selection raised in claim (1). Further, as to claim (2), the Agency noted that Complainant did not assert that she applied for the positions. Furthermore, the Agency indicated that Complainant's contact in November 2011 was well beyond the 45-day time limit. As such, it provided Complainant the opportunity to explain her delay in bringing the matter to the EEO Office.
On January 27, 2012, Complainant submitted her response to the Agency's inquiries. As to claim (1), Complainant stated that she received notice of the non-selection in claim (1) on January 7, 2011. She asserted that she took the matter to the EEO Case Manager and submitted documentation for amendment to her prior complaint. On March 4, 2011, Complainant received the acceptance letter for the Prior Complaint. The acceptance letter had a footnote which Complainant interpreted to include claim (1). Complainant contacted the EEO Case Manager on how to proceed with claim (1). During this time, on June 8, 2011, she received notice of the non-selection in claim (2) even though the non-selection form was dated March 22, 2011. Complainant faxed a copy of the non-selections raised in claim (2) to the Case Manager. Complainant noted that claim (2) was dismissed as untimely and that the matter became confusing for Complainant. She then raised the claims with the AJ who directed her back to the EEO Office. Complainant stated to the Agency that she attempted to comply with the time limits to the best of her abilities.
The Agency dismissed the instant complaint. As to claim (1), the Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1) by finding that Complainant had raised the same matter in the prior complaint. The Agency noted that Complainant requested that the Agency amend the prior complaint on June 10, 2011, to include claim (1). Further, the Agency asserted that it dismissed the amendment on June 17, 2011, for failure to raise the matter in a timely manner pursuant to 29 C.F.R. �1614.107(a)(2). The Agency also dismissed claim (2) noting that Complainant failed to raise these non-selections in a timely manner pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant received the AJ's order dated October 14, 2011, and brought the matter before the Case Manager. As such, the Agency found that claim (2) was raised with the EEO Office well beyond the 45-day time limit.
Complainant appealed asserting that the claims were raised within 45-days and that it was the Case Manager who erred. Based on the errors by the Case Manager, the complaint was dismissed as untimely. Therefore, Complainant requested that the Commission remand the complaint. The Agency requests that we affirm its dismissal action.
ANALYSIS AND FINDINGS
As an initial matter, we note that the record showed that Complainant attempted to raise claims (1) and (2) in the processing of her prior complaint. The Agency properly noted in its dismissal of the amendment that Complainant could appeal the Agency's procedural dismissal once the Agency has issued a final decision on the prior complaint. The prior complaint was before the AJ, who has issued a decision on the merits of that complaint. Complainant has not filed an appeal on the prior complaint. Therefore, she did not raise the dismissal of claims (1) or (2) with the Commission in conjunction with the prior complaint.
We find, however, that due to the unique circumstances of this case, the Agency's dismissal of claims (1) and (2) has been severed from the processing of the prior complaint. We note that the Agency's dismissal failed to inform Complainant that the AJ could review its dismissal of her amendments. Despite the lack of notice, Complainant attempted to raise claims (1) and (2) before the AJ and to have the Agency's dismissal of her requests to amend the prior complaint reviewed by the AJ. Rather than addressing Complainant's motion to amend the pending complaint to include claims (1) and (2), the AJ ordered Complainant without specific comment to contact the Agency's EEO Office about "new claims" of discrimination. Based on the AJ's order and the unique procedural history of claims (1) and (2), we find that claims (1) and (2) are no longer part of the prior complaint. As such, we find that the dismissal of claim (1) pursuant to 29 C.F.R. �1614.107(a)(1) is not appropriate.
Therefore, we shall review the dismissal of claims (1) and (2) for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. �1614.107(a)(2) states 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, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that the Agency found that Complainant contacted the EEO Counselor with regard to the instant complaint on October 14, 2011, based on the AJ's order. We find that the Agency erred in finding this date to be the initial date of contact. A full review of the record showed that Complainant contacted the Agency in January 2011, regarding claim (1). She sought to amend her prior complaint to add a new non-selection which she believed occurred because of that prior EEO complaint. The Case Manager erroneously believed that claim (1) was merely the formal notice of non-selection for the event raised in the prior complaint. Her error was not discovered by Complainant until March 2011, when Complainant received the Agency's Letter of Acceptance of the prior complaint. Despite Complainant's efforts to correct it, the Case Manager did not consider Complainant's request to amend the prior complaint to include claim (1). As such, we find that Complainant's contact with regard to claim (1) was in January 2011, well within 45-days of her notice of non-selection with respect to the vacancy announcement listed in claim (1).
As to claim (2), in March 2011, the record showed that Complainant informed the Agency of two vacancy announcements which were posted that month. Complainant did not receive notice that she was not qualified for those positions until June 2011. At that time, she contacted the Case Manager to amend the prior complaint to include the two positions. She believed that the positions were posted at a higher grade so that she would not be eligible for them based on her prior complaint. The record showed that Complainant received the "notice of results" on June 8, 2011, and faxed it to the Case Manager on June 10, 2011. As such, Complainant's contact on June 10, 2011, requesting an amendment to the prior complaint was timely. Therefore, we find that the Agency's dismissal of claim (2) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
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 (M0610)
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 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 (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 (Z0610)
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
July 20, 2012
__________________
Date
2
0120121616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121616