Valencia L.,1 Complainant,v.Erhard R. Chorlé, Chair, Railroad Retirement Board, Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019001765 (E.E.O.C. Sep. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Valencia L.,1
Complainant,

v.

Erhard R. Chorlé,
Chair,
Railroad Retirement Board,
Agency.

Appeal No. 2019001765

Agency No. 191127

DECISION

Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's December 17, 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., 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 an Investigations
Technician, GS-07, in the Program Evaluation and Management Services Division of the
Agency’s Office of Programs, located in Chicago, Illinois.

On November 27, 2018, Complainant filed a formal EEO complaint alleging that the Agency
subjected her to discrimination on the bases of race (African-American), color (mocha tan), age
(59) and reprisal (prior protected activity) when she was not selected for the position of Railroad
Retirement Claims Examiner (Disability), GS-0993-11, under Vacancy No. 17-40 MW.

On December 21, 2017, Complainant was forwarded an email that had been sent by the
Disability Benefits Division (“DBD”) Director to DBD staff the day before, which congratulated

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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and named the 11 selectees for the GS-11 Disability Claims Examiner position, and thanking “all
who applied.”

On February 5, 2018, the Agency issued an internal notification of new hires, known as a
“Yellow Sheet.” The GS-11 Disability Claims Examiner selectees were listed, Complainant’s
name was not among them. Complainant contacted Human Resources (“HR”) with a FOIA
Request that day to determine why these 11 individuals were selected and she was not. The
sanitized documents were delivered to Complainant on or about August 22, 2018.

On September 4, 2018, Complainant reviewed the FOIA documents, and determined that the
panel responsible for scoring applications and granting interviews, along with the selecting
officials, did not properly consider her qualifications. She asserts they disregarded her education,
and years of experience at the Agency. She also alleges that she became aware that all of the
selectees were younger than her with less relevant experience. Complainant initiated EEO
contact on September 5, 2018.

The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
counselor contact. The instant appeal followed.

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. 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).

The Agency contends that reasonable suspicion existed for Complainant on December 21, 2017
or February 5, 2018, when she became aware she was not selected for the GS-11 Disability
Claims Examiner position. Complainant references becoming aware of her non-selection in
December 2017. She also acknowledges in the record that she knew she had not been selected
once she saw the February 5, 2018 Notice.

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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 Def., EEOC
Request No. 05920506 (Aug. 25, 1992)).

In the instant case, the Agency met its burden, as the record includes a copy of the December 21,
2017 email Complainant received, indicating that she was not selected for the GS-11 Disability
Examiner position. It also provided a copy of the February 5, 2018 Yellow Paper Notice listing
the selectees, and an email response from Human Resources (“HR”) confirming that
Complainant made her FOIA request on February 5, 2018. Complainant received the sanitized
FOIA materials on or about August 22, 2018.

Complainant argues that despite learning of her non-selection on February 5, 2018, reasonable
suspicion of discrimination did not exist until September 4, 2018, when she viewed the notes of
the three-member panel tasked with scoring applications, part of her FOIA request. Complainant
argues that the notes indicate the scoring was unfair.

However, we find she was aware that she had not been granted an interview, and that 11 other
candidates were selected over her on February 5, 2018. She would not require FOIA to suspect
that her alleged ample qualifications for the position, such as her years working for the Agency,
were erroneously overlooked somewhere in the decision-making process. As such, we find that
reasonable suspicion existed by February 5, 2018. Therefore, Complainant’s initial EEO contact
date of September 5, 2018 is untimely, and the matter was properly dismissed.

Alternately, to the extent Complainant was waiting for the FOIA results before deciding whether
to initiate EEO contact, or as preparation for EEO contact, the Commission has consistently held
that the utilization of agency procedures, and other remedial processes does not toll the time limit
for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No.
01992093 (Nov. 29, 2000).

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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.

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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

September 18, 2019
Date