0120161518
06-08-2016
Shayne B.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shayne B.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161518
Agency No. ARJACKSON15OCT03839
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 28, 2016, dismissing a formal 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
During the period at issue, Complainant worked as a Range Operations Assistant, GS-07, at the Agency's Directorate of Plans, Training, Mobilization and Security (DPTMS) in Fort Jackson, South Carolina.
On October 1, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On January 13, 2016, Complainant filed a formal EEO complaint alleging discrimination on the bases of race (African American) and color (Black). The Agency, in its final decision, characterized the claim as follows:
on September 8, 2015, [he] became aware that [named Agency officials] failed to complete a SF-50 showing [his] job detail, which caused [Complainant] not to be considered for Job Announcement SCDU157560201425049, Training Facilities Coordinator.
Complainant, a GS-7, alleges that, between 2009 and 2015, he was periodically detailed for extended periods to a GS-9 position, as well as to the Training Facilities Coordinator position, a GS-11 position. When the Agency advertised to fill the Training Facilities Coordinator position in May 2015, Complainant applied. Complainant states that in August-September 2015, he learned that he was deemed "not qualified" for the Training Facilities Coordinator position because he was not given official credit (through an SF-50) for the details to higher graded positions.
In its January 28, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact on October 1, 2015, was beyond the 45-day limitation period for making timely EEO contact. The Agency acknowledged that September 8, 2015, is claimed as the date of the alleged discriminatory event, the date that Complainant learned that Agency inaction purportedly prevented him from being considered for the Training Facilities Coordinator position. However, the Agency stated that the job announcement for the subject position closed on June 29, 2015.
Further, the Agency stated that, at the time Complainant applied for the subject position, he had to submit all the required documentation to show that he was eligible. The Agency therefore determined that Complainant knew or should have known at that time, that he had been unable to provide the required SF 50 documenting his detail(s) to higher graded positions in order to qualify for the GS-11 Training Facilities Coordinator.
The instant appeal followed. On appeal, Complainant argues that his October 1, 2015 EEO contact was timely. In essence, Complainant argues that he did not suspect discrimination until September 2015, when he discovered he was deemed unqualified for the Training Facilities Coordinator position, the very position his management had assigned and detailed him to on many occasions.
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 (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department 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.
Here, we find that both parties have offered somewhat complicated and convoluted definitions of the issues raised in the complaint. However, it is clear that, at least in part, this is a claim about Complainant's non-selection for the Training Facilities Coordinator position advertised under Job Announcement SCDU157560201425049. The record shows that Complainant was eliminated from consideration in the selection process. The complaint and related EEO counseling report suggest that he was eliminated as unqualified because there was no official record that he had served for extended periods in a GS-9/11 position, necessary to qualify for consideration for the GS-11 position. The Agency contends that the time for contacting an EEO counselor should run from when the application period closed in June 2015. However, Complainant contends that he learned he was deemed unqualified months later - sometime between mid-August and September 8, 2015 - making his October 1, 2015 initial counselor contact timely.
We agree with Complainant that, at least as to his non-selection claim, the 45-day time period did not start running until Complainant learned that he was eliminated from further consideration for the Training Facilities Coordinator position. Why he was eliminated (e.g., the lack of a record of serving in a GS-9/11 position) will have to be addressed as part of the determination of the merits of his discrimination claim following the investigation required by regulation and further processing of his complaint. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
In addition, we note that, on appeal, Complainant alleged that for at least two periods within 45 days of the date he sought counseling, he served in a GS-11 detail (May - August 2015) and a GS-9 detail (September 2015 forward). Therefore, Complainant also has a timely claim concerning the lack of proper documentation/recognition/pay for these details.
The Agency's final decision dismissing Complainant's formal complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims (non-selection for Training Facilities Coordinator position and claim concerning two details to higher graded positions starting in May 2015) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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 (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
June 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.
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