0120114072
02-23-2012
_________________, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
_________________,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114072
Agency No. 200I06752011103015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 17, 2011, 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 Social Worker at the Agency’s Medical Center facility in Orlando,
Florida. On July 12, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), and reprisal for prior protected EEO
activity under when:
1. she was not selected for the position of Homeless Veterans Program
Coordinator, GS-13;
2. on June 1, 2011, an Agency official spoke to Complainant in a
derogatory manner and stated that Complainant was insubordinate and
uncooperative; and
3. On June 2, 2011, Complainant’s supervisor told Complainant that
she had a negative attitude and that she needed to watch her attitude
and how she speaks to service chiefs.
The Agency dismissed claim 1 as untimely in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(2). In its final decision, the
Agency first indicated that Complainant learned of her non-selection
for the position at issue on March 13, 2011. The Agency states also
that while Complainant asserts that she applied on November 22, 2010
for the Homeless Veterans Program Coordinator through USAJOBS pursuant
to vacancy announcement number ORL-09-196-FE, the Agency indicates that
it has no record of Complainant having expressed an interest in being
considered for the position. The report of the EEO Counselor indicates
that according to Complainant, she learned on March 25, 2011 that she
was not selected for the position. Finally, the Agency indicates in
its decision that Complainant knew as early as December 1, 2010 that she
was not selected to fill the vacancy when she received an email to that
effect from an Agency official.
The Agency dismissed claims 2 and 3 for failure to state a claim
in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
Specifically, the Agency found that Complainant failed to demonstrate
that she suffered any harm to the terms and conditions of her employment
as a result of the Agency’s alleged conduct.
ANALYSIS AND FINDINGS
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 forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (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 forty-five (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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review of the record, we find that the Agency’s dismissal of
claim 1 as untimely was improper. According to the Agency’s final
decision, Complainant learned on March 13, 2011 of her non-selection.
The Agency further alleges that Complainant knew as early as December 10,
2011 that she had not been selected to fill the position. The Agency
has included in the record, copies of emails from Complainant inquiring
about the Homeless Veterans Program Coordinator position. However,
the email evidence provided by the Agency is confusing and seems to
indicate that there was some misunderstanding regarding which position
Complainant applied for and when she applied for it. Moreover, the record
is not clear with respect to the specific vacancy announcement at issue
in this matter. On appeal, Complainant indicates that she applied for
Job #ORL-09-198-FE, while the Agency asserts that she applied for Job#
ORL-09-196-FE.
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 (January 4, 1994) (quoting Williams v. Dep't
of Def., EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that “the agency has the burden of
providing evidence and/or proof to support its final decisions.” See
also Gens v. Dep't of Def., EEOC Request No. 05910837 (January 31, 1992).
The agency, in failing to establish when Complainant received notice
that she was not selected for the position at issue herein, failed to
substantiate the grounds for its decision. See Marshall v. Department of
the Navy, EEOC Request No. 05910685 (September 6, 1991). Consequently,
the agency's decision to dismiss claim 1 was improper.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of a complainant's employment. The Court
explained that an “objectively hostile or abusive work environment [is
created when] a reasonable person would find [it] hostile or abusive”
and the complainant subjectively perceives it as such. Harris, supra
at 21-22. Thus, not all claims of harassment are actionable. Where a
complaint does not challenge an agency action or inaction regarding a
specific term, condition or privilege of employment, a claim of harassment
is actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
In the instant case, the Commission concurs that the conduct described
by Complainant in claims 2 and 3 was not so severe or pervasive that it
altered the terms and conditions of Complainant's employment. We find that
the complaint fails to state a claim under the EEOC regulations because
Complainant failed to show that she suffered harm or loss with respect
to a term, condition, or privilege of employment for which there is a
remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
CONCLUSION
For the reasons stated above that Agency’s decision dismissing claims
2 and 3 is affirmed. The Agency’s decision dismissing claim 1 as
untimely is reversed. Claim 1 is remanded to the Agency in accordance
with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (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
February 23, 2012
__________________
Date
2
0120114072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114072