0120162804
01-24-2017
Thad P.,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
Thad P.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120162804
Agency No. 200J05842016104134
DECISION
Complainant timely appealed to this Commission from the Agency's August 30, 2016 dismissal of 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 Grant and Per Diem Liaison, GS-11, for the Health Care for Homeless Veterans ("HCHV") program at the VA Medical Center in Iowa City, Iowa.
On August 18, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and age (66) when:
1. On April 12, 2016, he was not non-competitively promoted to the GS-12 grade level, and the process was discontinued because he accepted a position with another agency; and
2. On April 20, 2016, his position as a Grant and Per Diem Liaison, GS-11, was posted at a GS-12 grade level.
In April 2008, Complainant, previously an HCHV Outreach Physician, GS-11, applied and was accepted for the position of Grant and Per Diem ("GPD") Liaison, which was advertised as a GS-11 position. The previous GPD Liaison ("L1"), a woman in her mid-thirties to mid-forties, was a GS-12. Unlike Complainant at that time, L1 was a Licensed Independent Social Worker ("LISW"). Complainant alleges that even though he was not an LISW he was performing functions and duties at a GS-12 level while receiving less compensation than L1 had at the same position. He further alleges that for 6 years, he attempted to receive equal compensation. First he sought step increases within his GS-11 to make up for the disparity, and then he obtained his LISW in December 2012. Complainant had anticipated that once he obtained the necessary license as an LISW, he would be eligible for promotion as a GS-12. When no promotion came, Complainant emailed the Social Worker Program Specialist and requested a grade increase to GS-12. Complainant explained that his credentials and his responsibilities were identical to L1's when she held the same position as a GS-12, and argued that his request was consistent with the Agency's official qualification standards. According to Complainant, after he sent the email, the HCHV staff was informed that there would be no grade increases to GS-12 because their unit was only entitled to one GS-12 level employees. L1, as HCPV Coordinator, was in charge of all of the programs, so she held the only GS-12 level position in their unit.
Believing he would not obtain promotion to GS-12 if he continued working as a GPD Liaison, Complainant applied for a GS-12 position at another agency in or around early 2016. While he was still awaiting a reply, Complainant also applied to a vacancy announcement for his old position as HCHV Outreach Physician this time advertised at the GS-12 level. Management responsible for hiring the HCHV Outreach Physician, GS-12, informed Complainant that contrary to what his supervisors told him, if he wanted to continue to work for the Agency as a GS-12, he could do so in his current position as a GPD Liaison. At Complainant's request, Management began the process of reclassifying Complainant from GS-11 to GS-12. Then, on or around April 12, 2016, while the reclassification of his GPD Liaison position was still in process, Complainant accepted an offer for the position he applied to at the other agency.
Complainant notified the Agency of his decision to accept a position at another agency. His last day would be May 28, 2016. On or around April 20, 2016, a new vacancy announcement was posted for GPD Liaison, GS-12. Complainant, still in the GPD Liaison as GS-11 had not received a corresponding grade increase even though the announcement indicated the position had been recategorized. L1 transferred back to her previous role as GPD Liaison, GS-12.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �� 1614.105(a)(1) and 1614.107(a)(2).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in relevant part, 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. 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 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. 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).
A complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (Jul. 29, 1999), Gates v. Dep't of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Dep't of Treasury, EEOC Request No. 05900194 (May 24, 1990)). For purposes of timeliness, contact with an agency official who is "logically connected with the EEO process" is deemed a Counselor contact. Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990); see Kemer v. General Serv. Admin., EEOC Request No. 05910779 (Dec. 30, 1991).
The alleged discriminatory acts occurred on April 12 and 20, 2016, yet Complainant did not initiate contact with an EEO Counselor until July 1, 2016, which is beyond the 45 day limitation period. Complainant does not dispute that he suspected discrimination at the time of the alleged discriminatory acts, nor does he claim to have been unaware of the 45 day limitation period. On appeal, Complainant asks us to consider his complaint timely, explaining that he sought to resolve his allegations within 45 days of the alleged discriminatory actions, on May 24, 2016, when he mistakenly contacted the Office of the Inspector General ("OIG") Office of Resolution Management instead of an EEO Counselor.
The record does not support that OIG can be considered "logically connected with the EEO process" for purposes of establishing timely EEO contact. Even if it did, Complainant's May 24, 2016 letter to OIG, while submitted within the 45 day limitation period, does not "exhibit intent to begin the complaint process." The letter details the agency's alleged actions in the instant complaint, but is devoid of any reference to discrimination based on age, sex, or any other protected class covered by our statutes. It also contains allegations that are beyond the scope of an individual discrimination complaint. Specifically, Complainant alleges that like him, his colleagues (sex and age not specified) also believe that management "lied" to them about their job classifications, and whether they could be reclassified as GS-12s. Complainant's only request in the letter, that OIG "please check into this process, or lack thereof," was made with regard to his allegations of dishonesty with the grade classification process, and does not indicate an intent to pursue an EEO matter. We are not persuaded to waive the limitation period on these grounds.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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
January 24, 2017
__________________
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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