0120161025
04-26-2016
Samuel R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Samuel R.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161025
Agency No. 200306232015104735
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 29, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Dentist (GS-15) at the VA Medical Center in Muskogee, Oklahoma.
On November 2, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Puerto Rican) when on July 23, 2015, the Chief of Staff ("CS") and Chief of Dental Service ("CDS") denied his request for his 2014 performance bonus.
In its Final Decision, the Agency reframed the alleged discriminatory act in Complainant's formal complaint to read "on May 20, 2015, CS and CDS denied Complainant's request to receive a performance payment for the FYI 2014 rating period." The Agency supported the change by providing a copy of Complainant's signed performance rating dated April 17, 2014, in which he received an "unsatisfactory;" and a May 20, 2015 email exchange with CS, in which Complainant requested payment for the same 2014 performance award. CS responded "No performance pay [was] recommended." Complainant then informed CS that he had whistleblower protection regarding this matter because he filed an EEO complaint on the same matter "against the US Department of Veterans Affairs" with the U.S. District Court of San Juan, Puerto Rico; and CS reiterated that no performance award had been recommended.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) and � 1614.105(a)(1), for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states in relevant part that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limit contained in �1614.105. Under 29 C.F.R. � 1614.105(a)(1), 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 a personnel action, within forty-five (45) days of the effective date of the action.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. DOD, EEOC Request No. 05920506 (August 25, 1992)).
In the instant complaint, the Agency met its burden by providing the documentation referenced above. Not only did it establish that Complainant was aware of his 2014 "unsatisfactory" rating precluding a bonus, it establishes that by May 20, 2015, Complainant was aware CS did not intend to approve a 2014 performance bonus. Complainant's comments about his past EEO activity in response to CS's emails imply that he suspected a potentially discriminatory motive. The remainder of the record does not conflict with a finding that Complainant had a reasonable suspicion of alleged discrimination on May 20, 2015 and that he did not seek counseling until August 5, 2015, beyond the forty-five (45) day limitation period.
On appeal, Complainant argues that the Agency improperly framed his complaint when it changed the date of the alleged discriminatory act from July 23, 2015 to May 20, 2015. He also appears to argue that the Agency erroneously framed the discriminatory act itself as a denial of a performance bonus rather than Complainant's allegation that a bonus he was properly owed had been withheld. Complainant also rebuts the May 20, 2015 email exchange with May 26, 2015 email records demonstrating miscommunications between his past and present supervisors about his performance appraisal due to a transfer to another Agency facility in 2014. Complainant also provides an unsigned revised performance appraisal from his prior supervisor with all "satisfactory" ratings and a recommended performance bonus of $4,227.64, which was emailed to CS on July 6, 2015. Complainant alleges his formal complaint was timely filed because he was not definitively aware that discrimination occurred until a July 23, 2015 phone call with CS, in which CS expressly informed him that he would not receive a performance bonus for 2014.
However, 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. 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. (Complainant v. United States Postal Serv. (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012)). Regardless of whether July 23, 2015, was the date Complainant became certain that the alleged discrimination occurred, the Agency successfully established that reasonable suspicion existed prior to the forty-five (45) day limitation period.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
April 26, 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.
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