0120181339
07-12-2018
Tania O,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tania O,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120181339
Agency No. 200300202017900149
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 9, 2018 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-13, at the Veterans Benefits Administration, Office of Business Process Integration ("OBPI") in Washington, D.C.
On December 15, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the basis of national origin (Hispanic) when:
On October 3, 2013, the Acting Deputy Director, OBPI, denied her request for a "hardship" virtual reassignment as a GS-14.
In or around October 2013, Complainant, then in a GS-14 leadership position, requested a hardship transfer to virtual reassignment. The Acting Director ("D1") denied Complainant's request, as well as Complainant's offer to work virtually as a GS-13. However, D1 offered to facilitate a hardship transfer to a GS-13 position that had opened in a district office, a downgrade, which Complainant accepted.
In August 2017, the employee that was hired into Complainant's prior position also requested a hardship transfer to virtual reassignment. Unlike Complainant, her replacement was granted virtual reassignment in the same position but in a non-leadership role, while maintaining a GS-14. Complainant became aware of her replacement's virtual employee status on September 6, 2017, and alleges that her prior supervisor, the Deputy Director, influenced both decisions regarding virtual reassignment of the GS-14 position based on discriminatory motive.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides 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. Under 29 C.F.R. � 1614.105(a)(1), complaints of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the alleged discriminatory action or, in the case of a personnel action, within 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 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
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 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
Complainant did not initiate contact with an EEO Counselor until nearly four years after the alleged discriminatory action -- well beyond the 45 day limitation period. The Agency contends that reasonable suspicion of discrimination existed for Complainant at the time of the alleged event, and provides an October 3, 2013 email from Complainant to D1, stating:
The tasks and responsibilities I currently have can continue to be completed remotely, they have in the past by both [names two other employees (national origin/race not identified)]. I don't feel you are giving my request careful or fair consideration, especially as it relates to my Veteran and service connected spouse.
On appeal, Complainant clarifies that in 2013, she suspected unfair treatment, but had "no basis" to suspect discrimination. According to Complainant, the 45 day limitation period for notifying an EEO Counselor was triggered on September 6, 2017 the date she learned that the non-Hispanic employee working in her previous position had been granted the same hardship request that Complainant was denied, giving rise to reasonable suspicion.
It is well established that a complainant may not have a reasonable suspicion of discrimination until the agency treats a coworker outside complainant's protected class(es) differently. See Swanigan v. United States Postal Serv., EEOC Appeal No. 01A33469 (Mar. 31, 2004); Gladden v. Dep't of the Treasury, EEOC Appeal No. 01A15024 (Dec. 14, 2001); Gadsden v. Dep't of the Navy, EEOC Appeal No. 01A05418 (Apr. 13, 2001). However, in this instance, the Agency has shown that at the time the discriminatory action occurred, Complainant was aware of two other employees with similar responsibilities who could work virtually, yet her request was denied. We find the comparators, along with Complainant's contemporaneous, articulated belief that the denial of a hardship virtual transfer was "unfair," is sufficient to give rise to reasonable suspicion when the alleged discriminatory act occurred in October 2013, thereby triggering the 45 day limitation period. Therefore, Complainant's complaint was properly dismissed as untimely.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
July 12, 2018
__________________
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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