0120122236
10-04-2012
Tarana Colvin, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Tarana Colvin,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122236
Hearing No. 460-2011-00137X
Agency No. DAL-11-0042-SSA
DECISION
Complainant filed an appeal with this Commission from the Agency's final order dated April 4, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �791 et seq. For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Service Representative, GS-8, at the Agency's Houston Southwest Field Office in Houston, Texas. The Agency posted a Vacancy Announcement for two Social Insurance Specialist (Claims Representative) positions in the Houston Southwest Field Office on June 22, 2010, under Job Announcement Number ST-359498-202-10-DAL. Complainant applied for promotion to the Claims Representative position. Complainant was one of 37 applicants on the Certificate of Eligibles (Best Qualified) list. Person A, District Manager of the Houston Southwest Field Office, was the selecting official for the positions in question. The recommending officials were Person B, Person C, Person D, Person E, and Person F. Selectee 1 and Selectee 2, also Service Representatives in the Houston Southwest Field Office, were selected for the two vacancies. The selectees' promotions became effective on August 15, 2010.
The record reveals that on August 9, 2010, Person B, the Assistant District Manager of the Houston Southwest Field Office, met with Complainant to inform her that she was not selected for the Claims Representative positions. On August 11, 2010, Person A sent an office-wide electronic mail message announcing the two selectees for the Claims Representative positions, Selectee 1 and Selectee 2. On August 13, 2010, a Human Resource Specialist in the Agency's Dallas Regional Office, entered Complainant's non-selection into the Agency's job database. The database then generated a disposition notice that was sent via electronic mail to Complainant at the electronic mail address she supplied in her application. This notice, dated August 13, 2010, informed Complainant that she was not selected for the Claims Representative positions posted under Vacancy Announcement ST-359498-202-10-DAL.
Subsequently, on September 2, 2010, Person A announced the selection of a third applicant, Selectee 3, a Service Representative in the Houston Southwest Field Office. Person A selected Selectee 3 for the same Claims Representative position under the same vacancy announcement that she selected Selectee 1 and Selectee 2. Selectee 3's promotion became effective on September 26, 2010.
Complainant initiated contact with the Agency's Civil Rights and Equal Opportunity (CREO) office on October 12, 2010, and requested an interview with an EEO counselor. Thereafter, on December 30, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and disability (Graves Disease and Depression) when: in October 2010, Complainant was not selected for the Social Insurance Specialist (Claims Representative) position, filled under Vacancy Announcement Number ST-359498-202-10-DAL.
The Agency issued a February 17, 2011 letter, accepting Complainant's complaint as defined above. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion to dismiss Complainant's complaint on the grounds Complainant failed to timely contact an EEO Counselor. Complainant did not respond to the Agency's motion.
On March 13, 2012, the AJ issued a decision granting the Agency's motion to dismiss and found Complainant failed to timely seek EEO Counseling within the applicable forty-five day time limit. Specifically, the AJ noted that despite being informed of her non-selection on August 9, 2010, August 11, 2010, and receiving official notification on August 13, 2010, Complainant did not make contact with an EEO Counselor until October 12, 2010, which was beyond the applicable limitations period.
On appeal, Complainant notes that the last selection notice was issued on September 2, 2010. She states that she contacted the Agency's Civil Rights and Equal Opportunity office on October 12, 2010, within the applicable time frame. Complainant states the prior selections were part of ongoing harassment and discrimination and should be accepted as part of the complaint.
In response to Complainant's appeal, the Agency argues that Complainant waived her claim for discrimination by failing to respond to the Agency's August 18, 2011 motion to dismiss.
In the alternative, the Agency argues that the AJ properly found that Complainant failed to initiate contact with an EEO counselor within 45 days of her non-selection for the Claims Representative position. The Agency notes that Complainant was sent an official disposition notice on August 13, 2010, informing her that she was not selected for the Claims Representative position. Thus, the Agency argues that August 13, 2010, was the effective date of the personnel action. The Agency claims the counting starts the next day after the date of the disposition notice, on August 14, 2010, and Complainant's 45-day time limit expired on September 28, 2010.
Additionally, the Agency argues that Complainant's allegation that the non-selection occurred on September 2, 2010, or September 3, 2010, is not supported. The Agency acknowledges that in her initial contact and subsequent interview with the EEO counselor, Complainant alleged that the date of her non-selection was September 3, 2010. However, the Agency states that Complainant first learned of her non-selection during a conversation with Person B on August 9, 2010, and then learned the identities of the selectees from an office-wide electronic mail message distributed on August 11, 2010. Additionally, the Agency notes that Complainant received notification from an official disposition notice sent via electronic mail on August 13, 2010. The Agency also points out that Complainant admitted in her affidavit that the non-selection occurred in August 2010, because she specifically requested back pay "going back to August 2010, the date of the non-selection." Thus, the Agency argues that Complainant cannot now credibly argue that either September 2, 2010, or September 3, 2010, was the date of her non-selection.
The Agency also addresses Complainant's allegation that September 2, 2010, was the effective date of her non-selection because that was the date she learned of Selectee 3's selection. Specifically, the Agency states that this allegation must fail under the reasonable suspicion standard. The Agency notes that although Person A announced Selectee 3 on September 2, 2010, Complainant had official notice on August 13, 2010, that she was not selected for the position for which she applied.
ANALYSIS AND FINDINGS
At the outset, we reject the Agency's contention that Complainant waived her claim for discrimination by failing to respond to the Agency's August 18, 2011 motion to dismiss.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the 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.
Upon review, we note that the present complaint involves a claim that Complainant was not selected for a Claims Representative position for which she applied under Vacancy Announcement ST-359498-202-10-DAL. Although the original Vacancy Announcement listed that there were two vacancies that would be filled, the Agency ultimately filled three vacancies for the Claims Representative position. The record reveals that Selectee 1 and Selectee 2 were selected in August 2010, and Complainant was made aware that she was not selected for these two vacancies at the latest on August 13, 2010. However, we find the record reveals and the Agency acknowledges that on September 2, 2010, Selectee 3 was selected under the same vacancy announcement that was used to select Selectee 1 and Selectee 2. Additionally, the record reveals that the same Best Qualified list was used to choose Selectee 3, on which Complainant was listed. In the present case, all three non-selections at issue involved the same Claims Representative position, the same vacancy announcement, and the same Certificate of Eligibles. Thus, we find that the selection process for the Claims Representative positions did not conclude until the September 2, 2010 selection of Person 3 was made. We note that on appeal the Agency cites Nevels v. Department of Justice, EEOC Appeal No. 01A01116 (Aug. 2, 2000), in support of its decision. Nevels involved the possibility of an extension of the selection process and we found this possibility an insufficient reason to extend the time limit for contacting an EEO Counselor. The instant matter, however, involves an actual extension of the selection process which was not completed until September 2, 2010. Thus, we find Complainant's October 12, 2010 EEO Counselor contact was timely made.
CONCLUSION
Accordingly, the Agency's final order is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the Order herein.
ORDER
The Agency shall submit to the Hearings Unit of the Houston District Office a request for a hearing within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit.
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
October 4, 2012
__________________
Date
2
01-2012-2236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122236