0120142027
10-16-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142027
Agency No. 200P-0662-2013104602
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 20, 2014, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide, WG-2, at the Agency's VA Medical Center facility in San Francisco, California.
On September 17, 2013, Complainant initiated contact with an EEO counselor. On December 9, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when:
1. between October 6, 2012 and October 12, 2012, he was misled by management;
2. on February 11, 2013, Complainant was notified that his position was misclassified, and he was informed that the position that had been offered to him in Nevada was rescinded effective September 2013, forcing him to return to San Francisco without his family; and
3. in September 2013, his supervisor denied him the opportunity to apply for the position of Motor Vehicle Operator when the supervisor "dissuaded" Complainant for applying.
Complainant alleges that when he began his employment at the San Francisco Medical Center in 2011, the Agency's Human Resources Specialist had determined that Complainant was entitled to a five point veteran's preference. In reliance of this determination, Complainant maintains that he sought a transfer to a Las Vegas Housekeeping Aide position. He applied for, and was selected as a Housekeeping Aide, WG-3566-02, at the VA Southern Nevada Healthcare System, before his appointment status was questioned. However, by memorandum dated October 10, 2012, the former Chief of Human Resources at the Southern Nevada Health Care System advised Complainant that the "DD214 [he] provided does not indicate [he is] a preference eligible veteran.
Complainant further alleges that he received a memorandum dated February 11, 2013, from the Chief of Human Resources Management Service, that again stated that it was discovered that he had been erroneously appointed to the Las Vegas position, but that efforts would be made to "regularize" his appointment. According to the EEO Counselor's Report and the formal complaint, the Agency finally withdrew the job offer in Las Vegas in September 2013.
In addition, Complainant maintains that he was denied the opportunity to compete for the position of Motor Vehicle Operator. The positions were open for competition from December 14, 2012 through January 3, 2013, and as reposted from June 17 - 24, 2013. Complainant claims that he was dissuaded from applying for the positions and that his supervisor non-competitively selected the supervisor's friend (who is not in Complainant's protected group) for the position.
The Agency dismissed the complaint, reasoning that Complainant did not contact an EEO Counselor with the 45-day period of the events at issue and failed to provide a persuasive explanation for the delay.
This appeal followed.
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.
Despite the Agency's assertions that Complainant knew he was no longer considered to have veteran's preference in 2012, Complainant asserts that he did not immediately file an EEO complaint when he was first informed that his selection to the Las Vegas position was in jeopardy because he had received assurances that the Human Resources staff was providing him with the assistance needed in order to "regularize" his status to enable him to transfer to Las Vegas. He claims this was the reason for the delay in initiating EEO contact. Moreover, the complaint claims the Las Vegas job offer was not actually rescinded until September 2013. Therefore, we are persuaded, under these circumstances, that Complainant's September 2013 EEO counselor contact was timely made concerning the decision to rescind the Las Vegas job offer. Moreover, we do not find that claim 1 is independent of claim 2. Rather, both "claims" concerning the series of events that led to the decision to rescind the Las Vegas job offer, which is the heart of Complainant's claim of discrimination.
Complainant also alleged that, in September 2013, his supervisor denied him the opportunity to compete and due consideration for appointment to a Motor Vehicle Operator position during the relevant period when he dissuaded him from applying for two positions. We find that this claim was also timely raised during his September 2013 EEO counseling contact.
Upon review, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Moreover, to the extent that the Agency relies on its assertion that its actions were based on its determination that its actions were justified because Complainant lacked the requisite military service, this goes to the merits of the claim. In this case, Complainant challenges the Agency's application of its rules which he claims were imposed against him, but not others who were not African-American.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 tends 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 16, 2014
__________________
Date
2
0120142027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142027