0120162370
11-08-2016
Ruben P.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ruben P.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162370
Agency No. 200H05262016100815
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated June 7, 2016, 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. 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 a Health Care Technician at the Agency's Medical Center facility in New York, New York. On February 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and age (59) when:
1. On October 24, 2013, Complainant was not selected for two Health Technician/Medical Assistant positions, GS-0646-5, 6, and 7, from vacancy announcement number VHA 526-13-EH-961707;
2. On April 27, 2015, Complainant was not selected for the position of Health Technician (Geriatrics), GS-0646 5 and 6, from VN-15-MJM-1383842;
3. On April 29, 2015, Complainant was not selected for the position of Health Technician/Medical Assistant from vacancy announcement number VHA-526-15-JW-1365452-BU;
4. On May 9, 2015 Complainant was not selected for the position of Health Technician, GS-640-6, from vacancy announcement VN-15-MJM-1355468-BU;
5. On June 26, 2015, Complainant was not selected for the position of Health Technician, GS-0640-7, from vacancy announcement VIN1431000;
6. On June 26, 2015, Complainant also learned he was not selected for the position of Health Technician, GS-0640�7, from vacancy announcement VHA-526-15-MP-1431000-BU.
7. On August 21, 2015, Complainant was not selected for the position of Health Technician GS-0646-6, from vacancy announcement ANS-15-DLL-1466635-BU;
8. On September 30, 2015 Complainant was not selected for the position of Health Technician, GS-00640-6 from vacancy announcement VHA-526-15-MM-146296-BU
9. On December 11, 2015, Complainant was not selected for the position of Health Technician, GS-640-7, from vacancy announcement VHA-526-15-SDP-1558043-BU; and
10. On March 8, 2016 Complainant was not selected for the position of Health Technician GS-0640-6, from vacancy announcement VHA-526-SD-15-1555062-BU.
The Agency dismissed the claims for untimely EEO Counselor contact and for not being like or related to claims raised before the EEO Counselor. Specifically, the Agency found that claims 1 through 3 and claim 92 were not like or related to claims raised before the EEO Counselor. The Agency determined that Complainant raised only claim 8 before the Counselor, and that the Agency selecting official responsible for the nonselection referenced in claim 8 was not the same as the parties or entities responsible for the nonselections referenced in claims 1, 2, 3, and 9. Because those responsible for the nonselections in the latter claims were different individuals/entities than the person responsible for the nonselection in claim 8, the Agency determined that claims 1, 2, 3, 4 and 9 were not raised before an EEO Counselor and are not like or related to claim 8, the only claim raised before the EEO Counselor. With regard to claims 5, 6, 7, 8, and 10 the Agency dismissed those claims for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the alleged discriminatory events raised in claims 1 through 8 occurred between October 24, 2013 and September 30, 2015, but Complainant did not initiate contact with an EEO Counselor until November 18, 2015, which is beyond the forty-five (45) day limitation period.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Complainant argues that the delay in contacting a Counselor was "due to the delay in exchanging of information with the . . . Human Resources Office" regarding the nonselections. See Complaint File, Tab 11. We note, however, that the Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 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. In the instant case, Complainant should have developed reasonable suspicion of discrimination when he learned he was not selected, not after he had accumulated supporting facts from the Human Resources Office.
On appeal, Complainant submits copies of email conversations he had with an individual identified as an "EEO Officer" concerning his nonselections. We note that most of the emails are dated after Complainant had already contacted the EEO Counselor and hence have no bearing on the issue of timeliness. Complainant did, however, submit one email dated November 5, 2015, almost two weeks before his Counselor contact. We note, however, that in that email, while Complainant expressed dissatisfaction with the fact he was not selected for a number of positions, he did not discuss discrimination and hence we do not deem that email as constituting EEO Counselor contact for the purposes of timeliness. Furthermore, while Complainant contends that the 45-day limit is too brief, we are unable to change the law. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Because we find that Complainant's Counselor contact was untimely we need not address the Agency's argument that claims 1 through 4 were not raised before the EEO Counselor and are not like or related to claims raised before the Counselor.
With regard to claim 10, the Agency found that the claim was untimely because Complainant did not contact the Agency's Office of Resolution Management or the EEO Counselor until May 12, 2016, which is more than 45 days after he learned of the nonselection on March 8, 2016. We note, however, that by that time Complainant had already contacted a Counselor, having done so on November 18, 2015. The Commission has previously held that the 45-day limit only applies to initial Counselor contact, it does not apply to subsequent attempts to amend a complaint. See Braxton v. United States Postal Service, EEOC Appeal No. 0120102410 (October 29, 2010); See generally � 1614. Pursuant to � 1614.106(d), a complainant may seek to amend a complaint at any time prior to the conclusion of the investigation. That section makes no mention of any time limit. We further note that when amending a complaint there is no requirement that the complainant seek or receive counseling on the new claims. Since there is no requirement to seek or receive counseling, there is also no requirement to adhere to the 45-day time period for seeing a Counselor. We therefore find that the Agency erred in dismissing claim 10 for untimely Counselor contact. We further note that the FAD explicitly found that this claim was like or related to matters raised in Counseling.
Finally, with regard to claim 9, the FAD found that the claim should be dismissed because the claim is not like or related to matters raised before the EEO Counselor. Pursuant to 29 C.F.R. �1614.107(a)(2), an Agency shall dismiss a claim that raises a matter that was not brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. The FAD notes that the only matter raised by Complainant before the Counselor was claim 8, the September 30, 2015 nonselection for the position of Health Technician, from vacancy announcement VHA-526-15-MM-146296-BU. The FAD found that the selecting official for claim 8 was a "Primary Care management official" while claim 9 "involved either the Bronx VA Medical Center's Human Resources Personnel or the Office of Personnel Management" and hence claim 9 is not like or related to claim 8.
The Commission has held that a later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and/or could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S Postal Service, EEOC Request No. 05891068 (March 8, 1990). We note initially that despite the FAD's finding that the selecting official for claim 8 was a "Primary Care management official," Complainant stated during informal Counseling that it was the Human Resources Chief, not anyone from Primary Care, who told him that the reason he was not selected for the position in claim 8 was because he was not a team player. See Complaint File, Tab 1. Thus Complainant and the Agency disagree as to who bore responsibility for any discriminatory act of nonselection. Furthermore we find that by addressing the different hiring offices for each position, the Agency is addressing the merits of Complainant's complaint, which is inappropriate without a proper investigation as required by the regulations. Nor was Complainant's Counselor contact untimely as the matter was raised after Complainant had already received counseling. We therefore find that the Agency erred in dismissing claim 9.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD in part and REVERSE in part and REMAND claims 9 and 10 for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 9 and 10 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
November 8, 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 The Agency numbered the claims in a thoroughly confusing manner, including using duplicative numbering for separate claims. We have organized the claims in chronological order and provided different claim numbers for each claim.
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