0120180390
03-27-2018
Yvette H,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yvette H,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180390
Agency No. ARANAD17DSEP03142
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 2, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment (HME) Mechanic, WG-8, at an Army Depot in Anniston, Alabama. On September 7, 2017, Complainant initiated EEO contact alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when it failed to select her for a HME Mechanic, WG-10, position. Complainant stated, on August 8, 2017, she learned that she "outscored" several applicants, who are outside of her protected classes and were referred for selection. On October 16, 2017, Complainant filed a formal complaint reiterating her allegation of discriminatory non-selection.
In a decision dated November 2, 2017, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact. The Agency stated Complainant alleged discrimination for the instant non-selection for the WG-10 Mechanic position in a letter postmarked May 23, 2017 to the Depot Commander (S1).2 Complainant discussed the score matrix and prior non-selections in her letter. The instant appeal from Complainant followed.
On appeal, Complainant stated that she filed her claim after the matrix and referral list in the EEO Counselor's Report revealed systematic and traditional discrimination against African-Americans during the selection process.
In opposition to Complainant's appeal, the Agency stated, on January 23, 2017, Complainant through her representative sought an office call with S1 about non-selections. The Agency reiterated that Complainant sent a letter to S1 on May 23, 2017 about non-selections to HME Mechanic positions, including the instant non-selection. The Agency stated that discovery of additional evidence does not restart the regulatory time-frame for initiating EEO contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, 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 29 C.F.R. � 1614.105. Under � 1614.105(a)(1), an aggrieved person must initiate contact with an EEOC 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 record shows that Complainant had concerns about the instant non-selection to the WG-10 HME Mechanic position and began addressing the matter with the Agency (through Depot leadership) as early as January 23, 2017 and May 23, 2017. When the matter was not resolved, Complainant waited until September 7, 2017 to contact an EEO Counselor to address the issue at hand. Complainant stated that she initiated EEO contact after she reviewed a score matrix for the candidates for the HME Mechanic position and noticed that applicants outside of her protected race class scored lower and were referred for selection.
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 (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, reasonable suspicion existed well over 45 days prior to Complainant's initial EEO contact on September 7, 2017. Complainant reasonably should have known of the alleged discriminatory act no later than May 23, 2017, when she sent a letter raising the issue to the Depot Commander, S1. On appeal, Complainant fails to explain why she took over three months to contact an EEO Counselor upon discovering the issue of the discriminatory non-selection.
We find the Agency's dismissal of the complaint at hand pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
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
March 27, 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.
2 We note that the Agency provided an unsigned and undated, typewritten letter to S1 from Complainant; a handwritten, signed note to S1 from Complainant and another female employee; and an envelope addressed to the Chief Counsel at Anniston Depot and postmarked May 23, 2017.
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