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0 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53853.txt | Randy Mack v. Department of the Army
01A53853
August 16, 2005
.
Randy Mack,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53853
Agency No. ARJACKSON04DEC08397
DECISION
Complainant filed an appeal with this Commission from the April 14,
2005 agency decision dismissing his complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for failure to contact an EEO Counselor in a timely
manner.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Black) when after voluntarily
transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort
Jackson, South Carolina, complainant's pay rate was reduced from $22.64
per hour to $17.24 per hour, although he was performing the same work at
Fort Jackson that he had previously performed for $22.64 an hour at Cherry
Point. Complainant alleged that on November 2, 2004, he learned that a
Caucasian male in Plumber Maintenance at Fort Jackson had also accepted
a voluntary transfer from Cherry Point and did not have his pay reduced.
In its decision dismissing the complaint, the agency indicated that
complainant became aware of the difference in pay on November 2, 2004,
but did not express his intent to pursue the EEO process until February
24, 2005.
The record reveals that the alleged discriminatory pay rate reduction
occurred on October 31, 2004. The record reveals further that complainant
met with an EEO Counselor on December 9, 2004, concerning his rate of pay.
The record also contains an agency EEO form Memorandum, dated December 9,
2004, in which complainant checked off item "c" on the form. Item "c"
stated that complainant was deferring his decision "to pursue my matter"
until a later date. Item "c" also stated that complainant had been
informed and understood that he had 45 calendar days from the date
of the alleged discrimination or the date that he became aware of the
discrimination process to file an EEO complaint. The Memorandum also
indicated that the EEO complaint and mediation processes were explained to
complainant. The record reveals that complainant signed the Memorandum.
The record contains electronic mail messages which reflect that the
EEO Counselor was in communication with the Civilian Personnel Advisory
Center (CPAC) regarding complainant's rate of pay. A handwritten note
appearing next to a January 5, 2005 electronic mail message states that
the EEO Counselor had updated complainant on January 12. A January 13,
2005 electronic mail from the CPAC Director to agency personnel states
that complainant's official personnel matter was needed regarding an
"EEO issue." The record also contains an electronic mail message, also
dated January 13, 2005, to the EEO Counselor from the CPAC Director in
which the CPAC Director stated that the "CPOC" still had not received
complainant's official personnel folder. A February 2, 2005 electronic
mail message from the CPAC Director reflects that the CPAC Director met
with complainant on February 2, 2005, and that after the CPAC Director
explained to complainant that his pay was correct, complainant stated to
her that he had a better understanding of his concerns. The February
2, 2005 electronic mail message reflects that the EEO Counselor was
sent a copy. A handwritten note, dated February 3, 2005, which was
written by the EEO Counselor on a copy of an electronic mail message,
reflects that complainant called the EEO Counselor on February 3, 2005.
The handwritten note states that complainant would not pursue the matter
and that he regretted that his co-worker may have been overpaid and
might have to re-pay the overpayment.
The record also contains complainant's affidavit, dated May 31, 2005.
Complainant stated in his affidavit that upon learning of the pay
difference, he contacted an EEO Counselor with the intention of beginning
the EEO process and that he believed that he had complied with the first
step of the EEO process by contacting an EEO Counselor. Complainant also
stated that in the December 9, 2004 meeting with the EEO Counselor, the
EEO Counselor informed complainant that complainant would receive other
information concerning his claim as soon as the EEO Counselor returned
to work from having surgery and that there would be no problem with any
filing deadlines. Complainant further stated in his affidavit that he
believed that he was misled by the EEO Counselor about the procedure
for filing a formal complaint and that the form he signed on December 9,
2004, did not explain to him how to file a formal EEO complaint nor did
the EEO Counselor explain to him how to file a formal complaint.
The record contains the June 30, 2005 affidavit of the EEO Counselor.
The affidavit reveals that the EEO Counselor met with complainant on
December 9, 2004, regarding complainant's rate of pay and that the EEO
Counselor determined that the purpose of the meeting was that complainant
was seeking information on the EEO process. The affidavit also reveals
that the EEO Counselor explained the informal and formal stages of the EEO
complaint process to complainant and "emphasized" the 45-day time limit
for filing a complaint. The EEO Counselor stated in the affidavit that he
emphasized to complainant that complainant had not initiated an informal
EEO complaint and at the time, complainant only expressed his desire
to obtain a satisfactory answer from CPAC without filing a complaint.
The EEO Counselor stated that complainant informed him that complainant
had previous discussions with CPAC personnel regarding his pay rate and
he wanted to give them a chance to respond before he took any actions.
The EEO Counselor stated that although he told complainant that he would
be away from the office on sick leave, he did not tell complainant that
he would contact him. The EEO Counselor stated that he told complainant
to contact Counselor B, an EEO Specialist, if he changed his mind and
wanted to file an informal complaint. The EEO Counselor further stated
that he was on sick leave from December 13, 2004, until January 10, 2005.
The EEO Counselor stated that because of his desire to assist complainant
in obtaining answers, he asked for and obtained complainant's permission
to contact CPAC personnel on his behalf. The EEO Counselor also stated
that he was sure that complainant understood that his offer to assist
him was not his initiation of an informal complaint.
In his affidavit, the EEO Counselor stated further that the CPAC
Director informed him that she had met with complainant on February 2,
2005, and provided complainant with an explanation regarding his pay
and complainant told her that he understood. The EEO Counselor also
stated that complainant called him on February 3, 2005, to say that
he had accepted the CPAC's explanation and that he would not pursue an
EEO complaint. The EEO Counselor further stated that on February 24,
2005, complainant contacted him and expressed his desire for the first
time to proceed with an EEO complaint and that on February 28, 2005,
he assigned another EEO Counselor to counsel complainant.
In his affidavit, the EEO Counselor stated that at no time did he lead
complainant to believe that complainant should not be concerned with
timeliness nor did he tell complainant that he would respond to him in
writing about his EEO complaint. The EEO Counselor also stated that he
never discouraged complainant from filing an EEO complaint.
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. Department 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.
EEOC Regulations also provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c).
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to the
EEO process and exhibit an intent to begin the EEO process. See Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
The Commission has also consistently held that utilization of internal
agency procedures, union grievances, and other remedial processes does
not toll the time limit for contacting an EEO Counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).
Upon review, the Commission finds that the agency's dismissal was proper.
We find that when complainant contacted the EEO Counselor on December
9, 2004, complainant did not demonstrate an intent to commence the EEO
process. The first date the record persuasively shows that complainant
contacted an EEO Counselor with the intent to commence the EEO process
was on February 24, 2005, which was beyond the 45-day time limit.
We note that complainant agreed on December 9, 2004, to defer his
decision to pursue the matter until a later date. The form completed by
complainant on December 9, 2004, specifically notes a 45-day time limit.
Even if complainant was confused, as he claims, and thought the 45-day
time limit commenced on December 9, 2004, he still failed to make such
contact within 45 days of December 9, 2004.
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 16, 2005
__________________
Date
| 01a53853.txt | TXT | text/plain | 14,292 |
1 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181186.pdf | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damaris M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120181186
Agency No. 6X000000517
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 11, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming
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
During the period at issue, Complainant worked as a Customer Services, EAS -17, at the
Agency’s Fleetwood Station in Houston, Texas. On February 22, 2017, Complainant filed a formal EEO complaint . As summarized by the
Agency, Complainant claimed that the Agency discriminated against her based on sex (fe male)
and in reprisal for prior protected EEO activity when:
1. on unspecified dates, Complainant was sexually harassed by an EEO ADR Specialist (“EEO Specialist”) when the EEO Specialist asked her to call him, to
send him pictures, to visit him at work, and when he hugged her and pressed his erection against her; and
1 This case has been randomly ass igned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120181186
2
2. on December 6, 2016, Complainant was not paid when she was required to attend
an investigative interview.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice.
On December 11, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
2
The instant appeal followed. On appeal, Complainant ar gues that the Agency failed to
investigate her “80 incidents/complaints of retaliation, discrimination, sexual harassment, being black balled, being falsely accused three times of Claimant Fraud and Obstruction of Medical, slander and libel against her.” Complainant argues that the Agency improperly reduced her
formal complaint to the two incidents at issue.
ANALYSIS AND FINDINGS
Preliminary Matter – Claims at Issue
As an initial matter, we address Complainant’ s argument that the Agency failed to investigate all
80 incidents she included in her formal complaint. Our review of the record indicates that the Agency notified Complainant, by a May 12, 2017 Acceptance for Investigation letter, that her formal complaint included “extensive background information referencing incidents that occurred beginning in 2001 and continuing to the current date.” The letter further informed Complainant that she had “file d 23 additional EEO complaints from 2001 through 2016,” and
that information she provided in her formal complaint representing claims that have already been
processed as part of her 23 prior EEO complaint would only be considered as background information. Additionally, the letter also provided Complainant the opportunity to submit a written response within 7 days of receipt of the May 12, 2017 letter if she did not agree with the defined accepted issues. The record does not indicate that Complainant submitted a response.
Therefore, we find that the Agency properly defined the accepted claims at issue. Disparate Treatment: Claim 2
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green
, 411 U.S. 792 (1973). For complainant to prevail, she
2 The Agency initially determined that claim 1 was untimely raised with an EEO Counselor, and
therefore could be dismissed, p ursuant to 29 C.F.R. § 1614.107(a)(2) . However, for the sake of
argument that the matters was timely raised , the Agency addressed this claim on the merits ,
which will be the focus of our analysis.
0120181186
3
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine , 450 U .S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor
Cent er v. Hicks , 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination.
See U.S. Postal Service
Board of Governors v. Aikens , 460 U.S. 711, 713- 714 (1983); Hernandez v. Department of
Transportation , EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department o f Health
and Human Services , EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy , EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for not paying
Complainant on December 6, 2016. Complainant’s supervisor (“S1”) stated that at the time of
the investigative interview, Complainant was on injury compensation and she would not be able to be paid in addition to being on compensation.
The EEO Compliance and Appeals Manager (“M1”) testified that Complainant was not required
to attend the December 6, 2016 investigative interview . Instead, M1 stated that he encouraged
Complainant to “cooperate with the inquiry.” M1 stated that he believed that the investigative
interview lasted 2 ½ to 3 hours. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s sex and reprisal for prior protected EEO activity .
Sexual Harassment: Claim 1 To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) s he belongs to a protected class; (2) s he was
subjected to unwelcome sexual advances, requests for sexual fav ors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimida ting, hostile, or offensive work environment; and (5)
0120181186
4
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv. , EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be
evaluated from t he objective viewpoint of a reasonable person in the victim's circumstances. See
Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993); Henson v. City of Dundee , 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc. , EEOC Notice No.
915.002 (Mar. 8, 1994).
Here, we agree with the Agency’s determination that the record fails to support that Complainant was subjected to sexual harassment.
Complainant stated that the EEO Specialist requested that she call him, send him pictu res, and
visit him at work. Complainant did not specify when the EEO Specialist allegedly made these
request and Complainant indicated that she never asked the EEO Specialist to refrain from making these requests. Regarding requests for calls, Complainant testified that the EEO Specialist wanted her to call him for various reasons including the following : to come by his office; to inform him when she
was at the District Office; to celebrate her promotion and non- promotion; to discuss other EEO
complaints; to request hugs; and because she “owed him.” Regarding the requests for pictures, Complainant stated that the EEO Specialist would request a “new” picture or say that she “owe[d]” him and she “did not know his reas on for wanting
pictures of [her] except for the fact [she] inferred he was trying to have a sexual relationship with
[her] that was unwarranted and unwanted.” Complainant explained that she sent “selfie face
pictures” to the EEO Specialist and she re quested that he send her pictures only because he asked
her for pictures.
Regarding the office visit requests, Complainant explained that the EEO Specialist wanted her to come by the District office “JUST TO SEE HIM” but she would only go to the District Office if
she was on official business (emphasis in original) . Complainant further explained that the EEO
Specialist would stand around in the hallways looking for her when she would inform him, per
his request, that she was in the building.
Regarding the request for hugs, Complainant stated that the EEO Specialist hugged her in his
office.
3 Complainant further stated that during the hug, the EEO Specialist “became se xually
aroused and his private parts were pressed against [her] body.” Complainant explained that the hug was initiated by the EEO Specialist. B ecause the EEO Specialist had the door close d, there
were no witnesses to the incident. Complainant stated tha t she was “shocked,” “afraid,” and
“scared” because the incident reminded her of what “[another manager] did to [her] in his office with the door shut in 2001.”
4 Complainant further stated that she “may not have shown any
3 Complainant does not specify in her affidavit when this alleged incident occurred.
4 Complainant stated that another manager allegedly “sexually assaulted [her] in his office ” in
2001.
0120181186
5
reaction at the time,” but the EEO Specialist’s conduct was “unwelcomed,” “undesirable and
offensive ” and “she felt sick.” Complainant indicated that she notified “ treating physicians,
friends, co- workers, doctors, psychologists, and psychiatrists” about the incident but did not
specify which Agency management officials she informed. However, Complainant stated that an
investigation regarding this incident occurred on December 6, 2016.
The EEO Specialist testified that he previously worked on prior EEO complaints Complainant
had filed. The EEO Specialist explained that Complainant alleged a sexual harassment claim against him after he informed Complainant that sh e could not serve as a representative for a craft
employee in the employee’s redress mediation because of Agency policy .
5 The EEO Specialist
denied asking Complainant to call him, to visit him at work, or to send him pictures . However,
the EEO Specialist explained that Complainant sent him pictures of her face via text message on
her personal cell phone 4 -5 times. The EEO Specialist further explained that the pictures were
sent “in conjunction with a holiday” and Complainant was “wishing [him] a happy holiday.”
The EEO Specialist also admitted that he responded to one of these holiday texts f rom
Complainant by texting a picture of himself “sitting in [his] office behind [his] desk” during either Christmas or New Years. The EEO Specialist clarified that this was the only occasion that
he texted a picture to Complainant. The EEO Specialist further explained that Complainant voluntarily visited him in 2014 to inform
him that she had been promoted, and to thank him for giving her suggestions as to how she could
complete her application for her promotion. The EEO Specialist stated that this en counter
resulted in a “brief congratulatory hug,” but the EEO Specialist could not remember who
initiated the hug. The EEO Specialist denied having an erection during the brief hug , clarified
that the hug occurred in the workplace but not in his office, and confirmed that this hug was the
only hug he had with Complainant. M1 stated that he conducted an outside Fact Finding Team to complete an investigation after
Complainant informed him on December 6, 2016, during an investigation interview , that the
EEO Specialist had allegedly hugged her and pressed his erection against her “sometime in
2013.” M1 explained that he determined from the Fact Finding Report that there was no
evidence of sexual harassment. M1 further explained that to his knowledge, Compla inant did not
voice an objection to the EEO Specialist ’s alleged request for him to call her, and M1 determined
that the evidence Complainant submitted indicated that “she called and texted [the EEO Specialist ] several times of her own volition.” M1 explai ned that Complainant informed him that
she called the EEO Specialist for EEO purposes . However, M1 stated that Complainant’s text
messages “appeared to be unrelated to [the EEO Specialist ’s] duties” and some of the text
messages “appeared to have been ini tiated by [Complainant].” M1 further stated that the
evidence indicated that Complainant text ed the EEO Specialist on June 5, 2015, informing him
that she would be at his office that day and the EEO Specialist responded that he was at a
5 The EEO Specialist stated that Agency policy prohibits managers from serving as a craft
employee’s representative in the redress proc ess.
0120181186
6
conference in Washington, D.C. and would call Complainant back later. Therefore, M1
determined from the report that Complainant and the EEO Specialist had an “outside of work
friendship which [the EEO Specialist ] failed to disc lose to his manager.”
Because of a potential conflict, M1 stated that he instructed the EEO Specialist ’s manager to
have an Official Discussion with the EEO Specialist regarding his obligation to “report any
potential conflicts of interest that may aris e as a result of being assigned an informal complaint
for an employee that he has a friendship with.” As a result, M1 explained that he determined that
the EEO Specialist would no longer be assigned as the ADR Specialist on any further informal
complaints filed by Complainant.
The record includes copies of text messages sent between Complainant and the EEO Specialist. The text messages include “ headshot ” pictures of Complainant and one headshot picture the
EEO Specialist sent to Complainant in January 2016. The text messages indicate that
Complainant initiated the majority of the text messages a nd she voluntary sent pictures to the
EEO Specialist. In March 2015, Complainant requested an attorney’s contact information and attached a selfie to her mes sage. The EEO Specialist responded by providing the requested information, inquired
about Complainant’s injury, and commented, “U take some very nice pictures. Why do u always look down.” Complainant then responded by texting the EEO Specialist another selfie and stated, “this one is front facing now send me some.” The record further indicates that the EEO Specialist wished Complainant a happy Easter and a happy Mother’s Day in April and May 2015. Complainant thanked the EEO Specialist for both message s and sent a selfie in response
to the EEO Specialist’s Mother’s Day text . In June 2015, Complainant sent the EEO Specialist a
selfie and informed him that she was at the District Office and the EEO Specialist responded by
stating that he was at a conference in Washington, DC but would call her later. In December
2015, the EEO Specialist stated, “hello nice to see you. I thought you were going to hang around and talk.” Complainant responded with a selfie and stated, “Did not know what ur plans we re.
So I went back to work. Call me sometime” and the EEO Specialist responded “Love the pic.” In January 2016, the EEO Specialist sent Complainant a selfie of himself taken at his office. In February 2016, Complainant sent the EEO Specialist a selfie wis hing him a happy Valentine’s
Day to which the EEO Specialist responded, “Thank u. Same to u. U look very lovely.” On
March 21, 2016 and April 16, 2016, Complainant sent the EEO Specialist text messages at midnight and 11:22 pm and inquired whether he was awake.
The record also includes a screenshot of a Facebook friend request from Complainant to the EEO Specialist. We acknowledge that the EEO Specialist denied asking Complainant to call him, to visit him at
work, or to send him pictures. We further acknowledge that the EEO Specialist denied having an erection when he hugged Complainant. This testimony directly conflicts with the statements provided by Complainant . Here, however, Complainant effectively waived h er right to have this
matter considered before an EEOC AJ when she failed to respond to a notice informing her of a
0120181186
7
right to request a hearing. If Complainant had responded and requested a hearing , then the AJ
may have developed the record more through discovery and cross -examination of witne ss.
Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left
with the EEO Specialist’s version of events and that of Complainant which are completely at
odds. As such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of
Health and Human Servs. , EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't
of Homeland Sec. , EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric. ,
EEOC Appeal No. 0120102187 (Aug. 23, 2012) .
However, even if true as alleged, Complainant has failed to demonstrate that these incidents subjected h er to discriminatory sexual harassment. Copies of the tex t messages exchanged
between Complainant and the EEO Specialist indicate that most of these conversations were initiated by Complainant, the conversations were not sexually suggestive, and Complainant voluntarily sent selfies of herself to the EEO Speciali st. The record supports a determination that
Complainant continued to text the EEO Specialist about nonwork- related matters after he
allegedly hugged her and pressed his erection on her. Although the EEO Specialist denied
having an erection during this hug, this incident, even if true, is an isolated one. We have held
that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep ’t of Veterans Affairs
, EEOC Request No. 05960030 (July
12, 1996); Banks v. Health and Human Services , EEOC Request No. 05940481 (Feb. 16, 1995).
Further, Complainant has not shown that his term or condition of employment was adversely
affected by these isolated incidents. Therefore, Comp lainant has failed to establish that the
Agency subjected her to discriminatory sexual harassment.
Because we have discussed all claims on the merits, we need not address the Agency’s
alternative dismissal of claim 1 on procedural grounds.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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 thir ty (30) calendar days of receipt of this decision. A party
0120181186
8
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 Employm ent 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 rec eived 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 req uest 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).
COMPLAINA NT’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
0120181186
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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
August 13, 2019
Date | 0120181186.pdf | PDF | application/pdf | 24,235 |
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Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142833
Agency No. 144008502092
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 3, 2014, 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. 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 in "payroll1" at the Agency's Financial Management facility in Norfolk, Virginia. On June 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), color (White), and age (60 years at time of incident) when:
1. On or about March 11, 2014, Complainant discovered she had not been selected for a Financial Management Analyst GS-0501-07/09, position.
The Agency dismissed the claim for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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. Complainant contends that she learned that she had not been selected for the position on March 11, 2014. The record includes an internal email revealing that Complainant contacted the EEO Counselor's office on that date. The email states that Complainant "has contacted the EEO office interested in participating in workplace dispute Alternative Dispute Resolution (ADR). Issues raised: Non selection for the position of Financial Management Analyst) GS-0501-07/9. Resolution: Wants to know why she did not meet the qualifications to be selected for the position." The email did not indicate that Complainant intended to initiate the EEO complaint process.
The record on appeal contains an unsworn statement from the Deputy EEO Manager (DM) who maintained that when she met with Complainant "on or about March 10, 2014," Complainant:
and I discussed non-EEO ADR workplace dispute [sic] vs. EEO ADR mediations on or about 10 March 2014. Specifically, I discussed non-EEO ADR workplace dispute with [Complainant], because after going over the EEO process (discrimination bases and types) with her, she did not indicate she felt she was discriminated based on the discrimination types provided to her. I further advised [Complainant] that our meeting and conversation on 10 March 2014 served strictly as advisory on the EEO process and did not serve as official EEO Contact. [Complainant] advised [Agency officials that] she wished to participate in non-EEO ADR Workplace Dispute Mediation.
Agency Appeal Brief.
DM further maintains that a few days later Complainant changed her mind and notified her office that she had decided to pursue the EEO process and that the EEO Counselor's office then provided Complainant "with the necessary EEO Contact forms for completion and submission to confirm her EEO Contact." A few days later, according to DM, Complainant again had a change of heart. Specifically, according to DM:
On 17 March 2014, [Complainant] contacted me by email and stated, 'After talking this over completely with a union rep, I've decided to go with the mediation. Either the 2nd or 3rd of April will be okay,' On 17 March 2014, I emailed [Complainant] and requested she clarify whether she was referring to non-EEO ADR or EEO related ADR mediation in her email of 17 March 2014. [Complainant] replied and stated, 'Yes, I wish to pursue non-EEO ADR Mediation.' In response, I advised [Complainant] by email on 18 March 2014 that based on her email, my office would be working to now set up non-EEO ADR mediation and I further advised her that the timelines for EEO still apply in the event she decided once again to go the EEO route. On 18 March 2014, I once again advised [Complainant] that an employee must make EEO contact within 45 days of the alleged discrimination. Based on [Complainant's] election, my office scheduled a non-EEO ADR Mediation that was held on 24 April 2014. On or about 5 May 2014, [Complainant] contacted me and stated, 'Having a bad result with my mediation, I would like to resubmit my complaint with the EEOC, for an age, race and favoritism discrimination action." I advised [Complainant] by email on 5 May 2014 of the EEO Contact phone number to make official EEO contact. On 5 May 2014, [Complainant] made official EEO contact my office and confirmed her intent to participate in the official EEO process.
The record confirms DM's version of events, specifically we note the record contains a copy of a series of emails between Complainant and DM wherein Complainant states, on March 17, 2014, that "[a]fter talking it over with a union rep, I've decided to go with the mediation." DM then responds:
To ensure we are clear. When you say, you want mediation. I need you to confirm that you wish to pursue non-EEO ADR Mediation. If you recall you initially stated you wished to pursue non-EEO ADR Mediation, because you did not feel your issue related to an EEO discrimination type. Later, you indicated that you spoke with your representative and feel that your issue was related to an EEO discrimination type. I need you to confirm that you understand if mediation is set up, it would be based on a non-EEO ADR Mediation vice [sic] EEO related issue. Please confirm and I will proceed based on your confirmation.
Complainant then responds, "yes, I wish to pursue non-EEO ADR mediation" to which DM responds, "Based on your email, I will being working the non-EEO ADR Mediation. However, please know that timelines for EEO still apply in the event you decide once again to go the EEO route. An employee must make EEO contact within 45 days of the alleged discrimination."
The record thus shows that Complainant abandoned any initial efforts she may have made to initiate the EEO process on March 17, 2014 and she did not re-initiate her EEO contact until May 5, 2014, which is beyond the the forty-five (45) day limitation period for a nonselection that Complainant learned about on March 11, 2014.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record shows, however, that DM notified Complainant of the relevant time limit and warned her that should she subsequently decide to pursue the EEO process, the 45-day time limit still applied. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Dismissal is AFFIRMED.
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 (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 (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
January 30, 2015
__________________
Date
1 The exact title of Complainant's position is unknown. The EEO Counselor's report contains an entry entitled "Complainant's position" and next to it the word "General Ledger" has been crossed out and the word "payroll" has been written in by hand.
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0120142833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142833
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Jacqueline F. Newbold-Reese,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073324
Agency No. 200P-0691-2007100240
DECISION
On July 12, 2007, complainant filed an appeal from the agency's June 11,
2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
1. Whether an adverse inference should be drawn against the agency because
it failed to provide requested documentation to the EEO investigator
regarding complainant's non-selection for the position of EEO Program
Manager.
2. Whether the agency properly found that it did not subject complainant
to reprisal for prior EEO activity when it failed to select her for two
positions because complainant failed to prove that management officials
knew about her previous EEO activity when she was not selected for a
Technical Writer position, and complainant did not rebut the agency's
non-discriminatory explanations for not selecting her for the EEO Program
Manager position.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a nurse recruiter at the agency's Medical Center in Los
Angeles, California. Complainant has a Bachelor of Science degree
in nursing, law degree, and master's degree in mental health nursing.
Complainant also has previous experience as an EEO investigator, certified
mediator/arbitrator, and final decision writer.
On February 1, 2006, the agency advertised for the position of EEO
Manager, GS-12/13 in the Office of the Director in West Los Angeles,
California. According to the position description, the EEO Program
Manager manages the medical center EEO program and is responsible for
program development, administration, evaluation, and advisory functions.
Complainant submitted an application for the position and was deemed
qualified by the agency, but complainant was not selected for the
position.
On May 26, 2006, the agency advertised for four GS-12/13 Technical
Writer positions. According to the position description, a Technical
Writer serves as a consultant to the Director of Human Resources; acts
as writer-editor in the analysis and evaluation of EEO claims and other
labor cases; conducts legal research required for dispositive motions;
represents the agency at hearings; and, consults with management
regarding legal actions. Complainant applied for a Technical Writer
position on May 31, 2006, and was deemed qualified for the position by
the agency. However, the agency did not select complainant for the
position and selected three GS-12 Technical Writers who worked in the
Human Resources department for promotion to the position pursuant to
the vacancy announcement.
On December 20, 2006, complainant filed an EEO complaint alleging
that she was discriminated against in reprisal for prior protected EEO
activity under Title VII when on June 15, 2006 and September 29, 2006,
she was notified that management failed to select her for the positions
of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP).
In an investigative affidavit, the Director for the Greater Los Angeles
Healthcare Center stated that he was the selecting official for the
EEO Program Manager position and was not aware of complainant's prior
EEO activity at the time he made the selection. He stated that he also
served on the selection panel for the position, along with the Assistant
Regional Counsel (Counsel), Chief of Human Resources, and the Acting
EEO Program Manager. He stated that the panelists developed interview
questions, interviewed the candidates, and individually rated and scored
each candidate. He stated that there were approximately seven or eight
candidates for the position, but only four candidates with the top
scores were invited to have a second interview for the position with
the panelists and senior EEO management.
The Director stated that although complainant was qualified for the
position, she was not invited to a second round of interviews because she
did not demonstrate much knowledge or experience in managing EEO programs
and did not have the equivalent work experience of the candidate that
was selected. He stated that complainant's interview performance was "not
the strongest" because she "failed all the questions" and was unable to
articulate her knowledge and skills in EEO program management. Exhibit
B2, p. 7. He stated that at the end of the interview, complainant
did not have any questions to ask the panelists, which made him think
that she had not thought much about the position. He stated that based
upon the first round of interviews, the panelists achieved a consensus
opinion that complainant was not qualified enough for a second interview.
He stated that after the second round of interviews, the panelists agreed
that the selectee was the best applicant for the position.
The Chief of Human Resources (Chief) stated that he was not aware
of complainant's prior EEO activity at the time of the selections.
He stated that after the applicants for the EEO Program Manager position
were interviewed, the panelists ranked the candidates and referred the
top three candidates to the Director. He stated that complainant was
not referred to the Director because she did not perform well in the
interview, especially with regard to her responses to questions about her
leadership abilities. He further stated that the selectee was already
in a GS-14 or GS-15 position, had experience as a civil rights attorney,
and had a master's degree in Health Administration.
Counsel testified that at the time of the selection, she was not aware
of complainant's previous EEO activity. She stated that the selectee
was chosen for the position because she was the most qualified candidate,
was very bright, communicative, and had identical experience at a larger
agency in a more complex position at a higher grade. She stated that
during the interview, complainant displayed a "flip" attitude throughout
the interview and seemed to be a "little sarcastic." Exhibit B3,
p. 11.
The Acting EEO Program Manager stated that at the time of the
non-selections, he was aware that complainant had two or three pending
EEO complaints. He stated that the panelists asked each candidate the
same six questions during the interviews. He stated that complainant
was not referred to the second round of interviews with the Director
because although she answered the interview questions "reasonably,"
she did not have experience as an affirmative employment officer,
diversity coordinator, or EEO advisor to the director. He stated
that the top candidates demonstrated that they not only knew what the
position entailed, but also showed what they would do with respect to
diversity, affirmative action, and outreach, which are 90 percent of
the job. He stated that the selectee was chosen for the EEO Program
Manager position because she had experience in affirmative action,
diversity, and outreach and was an EEO manager, Alternative Dispute
Resolution coordinator, and manager of a complaint processing unit,
whereas complainant did not have this experience.
Regarding the Technical Writer position, the Chief stated that five
candidates applied for the position, including complainant. He stated
that the applicants were referred to General Counsel because Technical
Writers work for General Counsel, and General Counsel chose its preferred
candidates, who were already on staff as Technical Writers. He stated
that the Counsel decided to only fill three Technical Writer positions
because "there really wasn't any room or budget money" for a fourth
Technical Writer. Exhibit B4, p. 14.
Counsel stated that there were no interviews for three Technical Writer
positions. She stated that although she was part of the selection process
for the positions, she was not the selecting official and did not sign the
certification for the position. Counsel stated that she recommended the
top three applicants based on the order of the names on the certificate
of eligible candidates, but Human Resources made the final decision.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that complainant
established a prima facie case of reprisal with respect to the EEO
Program Manager position because the Acting EEO Program Manager knew
about her previous EEO activity, but complainant failed to prove that the
agency's explanations for not selecting her were pretext for reprisal.
With respect to the Technical Writing position, the agency determined
that complainant failed to establish a case of reprisal for this matter
because the selecting officials for this position were not aware of
complainant's previous EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
reprisal. Complainant contends that the Director, Chief, and Counsel
should have known about her previous EEO activity which resulted in a
settlement agreement on May 2, 2006, because agency policy states that
settlement agreements drafted by the EEO Office will be reviewed by the
Director of Human Resources, Regional Counsel, and the appropriate
Executive Leader prior to submission to the Executive Director.
Complainant further contends that the Director should have known about
the previous EEO activity because the Director is normally informed by
the EEO Manager of all formal EEO complaints filed against the agency.
With respect to the EEO Manager position, complainant argues that the
agency failed to provide ranking/rating sheets and or notes for the
record that indicated how applicants were selected to proceed to the
second round of interviews for the position. Regarding the Technical
Writer position, complainant argues that the agency retaliated against
her because although there were four Technical Writer vacancies, the
agency only filled three of the vacancies. The agency contends that its
final decision should be affirmed because all but one of the management
officials involved in the selection processes did not have knowledge of
complainant's prior EEO activity at the time of the non-selections.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
EEO Program Manager
In this case, complainant applied for and is qualified for an EEO
Program Manager position, but the agency did not select her for the
position. Complainant previously engaged in EEO activity on February 10,
2006, when she filed an informal EEO complaint in which she alleged that
the Director for the Greater Los Angeles Healthcare Center discriminated
against her on the basis of race and age, which resulted in a settlement
agreement dated May 2, 2006. Complainant was notified that she was not
selected for the position slightly over one month after she entered into
the settlement agreement, which we determine creates a nexus between her
previous EEO activity and her non-selection. Further, although three
of the four selection panelists maintained that they did not know about
complainant's previous EEO activity at the time of the non-selection,
the Acting EEO Program Manager stated that he was aware of complainant's
previous EEO activity. Thus, we find that complainant established a prima
facie of reprisal case for the EEO Program Manager non-selection.
Nonetheless, we also determine that the agency provided legitimate,
non-discriminatory reasons for not selecting complainant. Specifically,
management stated that it did not select complainant for the EEO
Program Manager position because the selectee had previous experience
in affirmative action, outreach, and managing an EEO program, whereas
complainant did not have such experience. Management further stated
that complainant did not articulate her knowledge and skills in EEO
program management during the interview.
Although management officials provided investigative statements in which
they recounted the selection process and explained why complainant was not
selected for a second round interview, we note that the agency did not
provide any copies of the interview notes or rating/evaluation sheets.
Moreover, the agency provided the application of the selectee for the
record, but did not provide the applications of the other three applicants
who were selected to compete at the second round of interviews.
The record reveals that on February 15, 2007, the EEO investigator
asked the agency to produce documentation reflecting how it evaluated
the candidates for the EEO Program Manager position, including interview
notes and any other documentation reflecting the reasons for selecting
the candidate. In a memorandum dated March 5, 2007, Human Resources
informed EEO officials that the interview notes and evaluation sheets for
the EEO Program Manager position "were not preserved," and the record does
not contain the requested documentation. Exhibit A3b, p. 1. We note
that EEOC Regulation 29 C.F.R. § 1602.14 provides that agencies must
preserve any records pertaining to selections and promotions for a period
of one year from the date of the making of the record or the personnel
action, whichever comes later. Moreover, the regulation requires that
once the complaint process is initiated, the agency is required to
retain personnel records until a final disposition of the complaint.
Because the agency has failed to comply with 29 C.F.R. § 1602.14,
we take an adverse inference against the agency and find that had the
missing records been preserved, they would have shown that the agency's
explanations for why complainant was not granted a second interview
were not credible. See Cosentine v. Department of Homeland Security,
EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of
Justice, EEOC Appeal No. 01A03341 (December 8, 2000)).
Nevertheless, even with this adverse inference, the evidence of
record does not establish that complainant was not selected because
of reprisal.1 The record contains a copy of complainant's and the
selectee's applications. At the time of the selection, the selectee was
a GS-14/15 equivalent Equal Employment Specialist Team Leader with Office
of Comptroller of the Currency. In that position, she managed the EEO
pre-complaint and formal process and Fair Alternatives and Innovative
Resolutions program; analyzed EEO complaint reports for the EEO Director;
reviewed EEO investigative files; briefed Senior Deputy Comptrollers and
other executives on EEO cases; drafted policies and procedures governing
alternative dispute resolution; conducted training for EEO counselors and
mediators; and, trained employees on the EEO process. Additionally, the
selectee also worked as the Director of Compliance and Equal Employment
Specialist at United States Customs and Border Protection and Human
Resources System Design Team Member at the Department of Homeland
Security. In these positions, the selectee implemented EEO policies,
analyzed EEO demographics for Affirmative Employment Plans, managed a
National Disability Program, wrote articles on EEO issues, and approved
special emphasis and outreach programs. The selectee has law and Master
of Public Administration degrees.
According to complainant's application, she has experience as a certified
mediator, arbitrator, Civil Service Commission Hearing Officer, EEO
investigator, adjunct professor, conflict management trainer, and final
agency decision writer. We find that the selectee possessed plainly
superior qualifications for the EEO Program Manager position, in light of
her extensive experience and expertise in a broad swath of federal sector
EEO fields, including EEO management, alternative dispute resolution,
EEO training, Management Directive 715 reports, Affirmative Employment
Plans, and special emphasis and outreach programs. While complainant had
experience in mediation, investigations, and final decision writing at
the time of the non-selection, she clearly did not have the broad EEO
or management experience that the selectee possessed for the position.
Consequently, we find that despite the adverse inference that the
agency's explanations are unworthy of belief, we find no persuasive
evidence of reprisal here because the selectee's qualifications for
the EEO Program Manager position are plainly superior to complainant's
qualifications.2 As such, we find no persuasive evidence that the
agency did not select her because of reprisal. See Carey Weathersy
v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16,
2007) (Commission found no discrimination where, even with an adverse
inference for failure to preserve records from the selection process, the
record does not establish that complainant would have been chosen over
the selectee for the position). Thus, we find that the record in this
case does not establish that the agency retaliated against complainant
when it failed to select her for the EEO Program Manager position.
Technical Writer
Complainant applied for a Technical Writer position, and the agency deemed
her qualified for the position. However, the selecting officials asserted
that they were not aware of complainant's prior EEO activity when they
made the selection for this position. Complainant maintains that the
selecting officials should have been aware of her prior EEO activity
because agency policy states that all settlement agreements must be
reviewed by the Director of Human Resources and Regional Counsel before
being submitted to the Executive Director, and a copy of the executed
agreement must be sent to both agency officials. However, while agency
policy and procedure may indicate that both agency officials should have
known about complainant's previous EEO activity because of their jobs,
complainant failed to show that the selecting officials actually knew that
she previously engaged in EEO activity when they made their selections.
Consequently, we find that complainant failed to establish a prima facie
case of reprisal for this claim.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that reprisal occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_____11/17/09_____________
Date
1 In Hicks, the Supreme Court held that a fact finder is not required,
as a matter of law, to find discrimination whenever it finds that
an employer's explanation for its actions is not credible. Id. at
519. The Court, however, made clear that a fact finder might find
discrimination in such circumstances. Id. at 524. The critical factor
is that a fact finder must be persuaded by the complainant that it was
discrimination that motivated the employer to act as it did. Id.
2 In fact, on appeal, complainant acknowledges that she never asserted
that her qualifications were plainly superior to the selectees'
qualifications. Complainant does not argue that selectee would not have
been referred to the second round of interviews.
??
??
??
??
2
0120073324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0120073324
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4 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981759.txt | Tommie L. Jackson v. Department of the Army
01981759
December 3, 1998
Tommie L. Jackson, )
Appellant, )
)
v. ) Appeal No. 01981759
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's December 3, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns the allegedly discriminatory behavior by
appellant's supervisor on February 5, 1997. The agency found that
appellant initially contacted an EEO Counselor on April 7, 1997. The EEO
Counselor's report states that appellant initially contacted an EEO
Counselor on April 7, 1997.
On appeal appellant states in an affidavit that she contacted EEO
Counselor A in February 1997. Appellant claims that EEO Counselor A
informed appellant that there were no EEO Counselors available that day
and that appellant would be called by the EEO Office when an EEO counselor
was available. Appellant claims that when she contacted EEO Counselor
A in February 1997, EEO Counselor made a "notation" of that contact.
Appellant states that because she was not subsequently contacted by the
EEO Office, she recontacted the EEO Office and was eventually assigned
an EEO Counselor.
Appellant states that EEO Counselor B (the EEO Counselor who signed the
EEO Counselor's report) spoke with EEO Counselor A and "her supervisor"
and confirmed that appellant had been in the EEO Office in February
1997 and that EEO Counselor A had a record of the February 1997 contact.
Appellant also has submitted a copy of an Initial Interview form which
indicates that appellant contacted the EEO Office in February 1997 but
that an EEO Counselor was unavailable. The agency has supplied a copy
of what appears to be that same Initial Interview form with further
writing on the form. The agency's copy has an asterisk (*) next to the
February 1997 date. Below the February 1997 date in the agency's copy
of the form is the following writing: "*EEO Records reflect 7 Apr 97."
The agency has not supplied affidavits from EEO Counselor A or EEO
Counselor B addressing whether appellant contacted the EEO Office
in February 1997 and the nature of that contact. The agency has not
supplied an affidavit from the appropriate agency official addressing
who wrote the February 1997 contact date on the Initial Interview form.
Finally, the agency has not indicated that it has examined the logs of
the EEO Office or the notes of EEO Counselor A to determine if appellant
contacted the EEO Office in February 1997. The Commission finds that
the agency has not conducted an adequate investigation to determine
whether the instant allegation was timely raised with an EEO Counselor.
The Commission shall remand the matter so the agency can place into the
record more evidence addressing the issue of whether appellant timely
contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from EEO Counselor A addressing whether appellant
attempted to contact an EEO Counselor in February 1997.
2. An affidavit from EEO Counselor B addressing whether in conversations
with EEO Counselor A, EEO Counselor A stated that appellant attempted
to contact an EEO Counselor in February 1997.
3. All relevant EEO Office logs in February 1997 and notations from EEO
Counselor A indicating whether appellant contacted the EEO Office in
February 1997.
4. An affidavit from the appropriate agency official explaining who
wrote the date of February 1997 on the Initial Interview form.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
December 3, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
| 01981759.txt | TXT | text/plain | 11,007 |
5 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170901.txt |
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimbery H.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120170901
Agency No. ARGORDON13MAY04525
DECISION
On December 21, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 30, 2016, 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 was a supervisor at the Agency's Dwight D. Eisenhower Army Medical Center, Integrated Disability Evaluation Center in Fort Gordon, Georgia.
On August 29, 2016, Complainant filed a formal complaint alleging that she was harassed based on her race (African-American), sex (female), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On May 2012, she was advised by the Chief, Patient Administration, not to have anything to do with an employee who filed an EEO complaint;
2. Between August 2012 and December 2013, her supervisor (S1) made statements about how he liked to perform oral sex, made slurping sounds to demonstrate how he did so, and made sexual remarks to female employees;
3. During January 2013 - May 2013, she was harassed and made to work in a hostile work environment; and
4. On May 16, 2013, she was issued a letter informing her that her term of employment would not be renewed and that her employment would cease effective May 21, 2013.2
Complainant wrote that on May 17, 2013, she went to the Fort Gordon EEO office to get information on the EEO complaint process. An "Information Inquiry Summary" form signed by Complainant and "EEO Official" 1 indicates initial contact on May 17, 2013. Therein, Complainant wrote that unlike others, her term appointment was not extended - she did not raise other matters. Language in the form confirmed Complainant was advised of the 45-calendar day time limit to initiate EEO counseling. EEO Official 1 wrote therein that Complainant had another job offer and wanted to decide later if she will file a complaint.
On June 24, 2013, EEO Official 1 provided Complainant a memorandum on "Aggrieved Person's Rights and Responsibilities" which detailed the EEO process, including that if resolution of her complaint is not achieved within 30 calendar days from the date Complainant initiated EEO counseling she would be given a notice of right to file a formal complaint, but if she was offered and accepted mediation, the notice time would be extended to 60 days.
On October 24, 2013, an EEO Administrative Technician confirmed to Complainant in writing that her mediation was scheduled for October 30, 2013. Complainant contends she had a scheduling conflict, and was advised the mediation would be rescheduled. She contends that she contacted EEO Officer 1 several weeks later and was told they were working on her complaint.
On December 18, 2015, Complainant sent an email to EEO Official 1 only updating her work contact information, which indicated she was an EEO Specialist, Affirmative Employment Program Manager, with an EEO Office at Fort Myer, Virginia. She contends that on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting an update on her complaint processing and received no response.
Thereafter, on August 29, 2016, Complainant filed her EEO complaint. The Agency then wrote Complainant that a review of its EEO iComplaints data base, EEO complaint files, and the EEO Complaint Log covering May 17, 2013 - August 26, 2016, did not indicate that she contacted an EEO official to file an EEO complaint. Complainant responded in September 2016, with documentation of her contacts. The record contains the May 2013 intake form, the June 2013 memorandum, the October 2013 mediation scheduling email, and the December 2015 update contact email. The Agency responded to Complainant that her documentation did not show that she met with an EEO Counselor to have her EEO complaint counseled. At a minimum, Complainant provided the Agency with the above October 2013 and December 2015 emails, and she may have provided the other two referenced documents.
The Agency dismissed the complaint under the doctrine of laches, finding Complainant did not exercise due diligence in pursing her complaint by allowing it to languish. It reasoned that after mediation fell through in October 2013, Complainant did not contact the EEO Office again until December 2015 (over two years) - and then only with her work contact information. The Agency found that Complainant's next contact was in August 2016, to file her EEO complaint. As recounted above, Complainant asserted that a few weeks after mediation fell through she contacted EEO Officer 1, and on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting the status of her complaint. The Agency argued on appeal that Complainant, an EEO Specialist, should know the importance of retaining correspondence in her case and did not provide copies of these emails.
On appeal, Complainant argues that laches do not apply because the Agency failed to notify her of the status of her complaint, failed to issue her a notice of right to file her complaint, and indicated they were working on her complaint, allowing her to become confused. In opposition to the appeal the Agency argues that laches applies. It also represents that EEO Officer 1 was the Fort Gordon EEO Director, and is no longer employed by the Agency.
ANALYSIS AND FINDINGS
In support its opposition to the appeal, the Agency cites Nichols v. United States Postal Service, EEOC Appeal No. 01A60899 (Apr. 13, 2006). In Nichols, we recounted that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. We explained that laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. In Nichols, the agency acknowledged that the complainant may have received EEO counseling, but stated it had no record of his filing a formal complaint. In applying laches, we noted that the complainant waited five years after he claimed he filed his formal complaint to inquire about its status, and it was significant that he had some familiarity with the EEO process.
In support of her appeal, Complainant cites Gunn v. Small Business Administration, EEOC Appeal No. 0120080844 (Apr. 24, 2010). In Gunn, the complainant contacted an agency EEO counselor in March 2005, raising allegations of discrimination. Thereafter, among other things, her case was assigned from the EEO counselor to an agency EEO Assistant Administrator, and steps were taken but not completed to assign it to an EEO counselor outside the agency. In October 2007, the complainant returned to the EEO Office and asked that her claim be processed. Instead, the agency closed her informal complaint, and later argued laches applied. We found that laches did not apply because regardless of what may have transpired after March 2015, there was no dispute that the agency failed meet its obligation to issue the complainant a notice of right to file a formal complaint after the termination of informal counseling. We found that while the complainant could certainly be faulted for not being diligent in pursing her claims, the agency was more culpable.
Complainant also cites Williams v. Department of Defense, EEOC Appeal No. 0120130153 (Feb. 11, 2013). In Williams, the complainant initiated EEO counseling in May 2010, and in June 2010, the agency asked her to agree to a 60 day extension for counseling. Nevertheless, before the deadline to respond elapsed, in June 2010, the agency EEO Counselor sent the complainant by email her notice of right to file her complaint. Before the offer to extend elapsed, the complainant responded that she accepted the offer. Thereafter, in June 2010, the complainant and the EEO counselor exchanged emails about complainant amending her complaint, without mention it was closed. In July 2012, the complainant contacted the agency's EEO Office inquiring about status, and in August 2012, it responded that her pre-complaint was closed because she received her notice of right to file her complaint in June 2010, and never filed her complaint (passed the 15-day time limit). The complainant contacted the agency again in writing in August 2012, which construed this as the untimely filing of the complaint. In reversing the agency's dismissal, we found that given the counseling extension, the agency should have issued a second notice of right to file a complaint. We disagreed with the agency's argument that laches applied, explaining that the agency's actions contributed to the complainant's belief that it was continuing to process her EEO claim at the informal level.
Applying the above cases, we find laches. Complainant contacted the EEO Office in May 2013, to get information on the EEO complaint process, and once there said she had another job offer and wanted to decide later if she would file a complaint. This did not trigger the Agency's obligation to issue a notice of right to file a complaint. In opposition to the appeal, the agency argues that mediation alone does not show Complainant was actively pursuing a specific claim because mediations via the EEO Office are often conducted for a variety of reasons and not just when a complainant is formally pursuing a claim of discrimination. Prior to filing her formal complaint, Complainant was not assigned an Agency docket number, which the Agency suggested was its practice when there is an intention to file a complaint. The mediation email contains no docket number. While Complainant contends through her attorney that around November 2013, she contacted EEO Officer 1 and was told they were working on her complaint, there is no documentation of this, and given the timing of this alleged exchange it could have been about mediation. Unlike Gunn and Williams, there is a question on whether Complainant should have been given a notice of right to file a complaint. Complainant's next documented contact with the EEO Office was in October 2015, when she merely updated her contact information. By December 2015, Complainant was an EEO Specialist in an EEO Office working as an Affirmative Program Manager, and hence more likely than not was very familiar with the EEO process, which weighs against her on culpability on delay. She next contacted the EEO Office close to or in the Summer of 2016.
We find that culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint, and hence laches apply.
The FAD 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
April 25, 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.
2 Complainant wrote in her complaint that while she had no clear evidence, she believed S1 was responsible for her receiving memos on May 20, 2013 and September 13, 2013, rescinding offers made to her on May 17, 2013, for Supervisory Health System Specialist (PEBLO), GS-12, and September 6, 2013, for Human Resources Specialist (Military), GS-11 "due to administrative error." The Agency did not capture these claims in its FAD, and Complainant does not mention them on appeal.
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2
0120170901
6
0120170901
| 0120170901.txt | TXT | text/plain | 15,647 |
6 | https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019001085.pdf | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenny C.,1
Complainant,
v.
Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 2019001085
Hearing No. 451-2014-00021X
Agency No. 7A0J12016XX
DECISION
Complainant filed a timely appeal with this Commission from a decision issued by an EEOC Administrative Judge (AJ), dated August 27, 2018, concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a n EEO Specialist at the Agency’s 502
nd Air
Base Wing, Joint Base San Antonio at Fort (Ft.) Sam Houston, Texas. On May 14, 2012, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on national origin ( Native American), sex (male),
disability, age ( over 40), and in reprisal for prior EEO activity:
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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1. by his supervisor , the former EEO Directo r, when:
a. on March 27, 2012, during a work discussion, she made negative and
threatening remarks and innuendo related to Complainant’s EEO complaint
and his livelihood;
b. on March 26, 2012, Complainant was counseled for not being a team player, for “giving the impression he was 24/7;” and for asking a second time for a reasonable accommodation by distributing his five military equal opportunity (“MEO”) programs among the EEO staff;
c. on March 22, 2012, Complainant was counseled for “emotionally fighting” to provide EEO service for a hospitalized airman;
d. on March 16, 2012, Complainant was denied a reasonable accommodation
when he asked that his five MEO programs be distributed among the EEO
staff; was counseled for insubordination for providing EEO services to the
aforesaid hospitalized airman, and refused to cede his EEO responsibility to
substantiate the EEO incident; refused to be included in passing unconfirmed 1561 information to the Air Force Installation Commanding General; and
refused to put his name on an EEO memorandum to the Commanding General
which included “untrue sexual information;”
e. in February 2012 and March 2012, Complainant was counseled because he
refused to charge overtime pay in order to support management’s desire to increase the EEO staff ;
f. between January 2011 and April 2012, except for Brook Army Medical
Center (“BAMC”) training and Army complaints, no job credit was entered on
Complainant’s performance document for handling five regular programs, a
mediation program and a training progr am, when other EEO Specialists
handled only EEO complaints;
g. between March 2011 and March 2012, Complainant was the only individual
assigned MEO programs who was told to advise customers and commanders that he would not be providing MEO services; was not provided valid job standards or a position description; was not counseled on a regular basis regarding his position description, performance or performance standards; and was not counseled on a regular basis regarding his Army EEO complaint performance “whi ch were duties beyond [his] Agency GS -11 EO duties;”
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h. between January 2011 and March 2012, he was not provided help with the
five MEO programs, and was instructed at various times to let the programs fail;
i. from June 2010 to March 2012, he was not given valid job standards or a
position description; his disability limitations were not respected while other employees’ limitations were; he was told that he was not [supervisor’s] first choice to fill his position; he was asked many times if he wanted to retire; he was rarely given professional performance counseling to increase his chances for success; was rarely provided overtime for working on the five MEO programs, while others in the office were allowed to work overtime; and he was “whacked” by *superviso r* upon her depa rture;
j. on April 3, 2012, he became aware that he had been disciplined for insubordination for providing EEO service to the aforementioned airman, who had asked for assistance with her sexual harassment/sexual assault claims; and
k. as of Apr il 9, 2012, he had not been removed from a hostile work
environment, where he was unable to talk to the EEO Co unselor handling his
claim ,without the former EEO Director being present;
2. By the temporary first- level supervisor (“supervisor”) when:
a. on March 29, 2012, the supervisor yelled at Complainant; told him to no
longer send e -mails; denied him due process in his EEO claim by conducting
an inquiry into his claim; and ordered him to leave his office;
b. on March 25, 2012, the supervisor told Complainant that he was waiting for
his complaint so he could process it; that he (EEO Director ) was on notice;
and that he would notify the proper EEO chain of command about the complaint being filed against the EEO Director;
3. Was Complainant discriminated against on his national origin, age, sex, disability, and reprisal when:
a. he was subjected to an investigation/inquiry into an EEO complaint he was handling, without receiving due process that resulted in the interim Equal
Opportunity and Alternative Dispute Resolution Director (“ interim director ”)
issuing him a written (oral) admonishment;
b. the admonishment included false information regarding his handling of the
EEO complaint, including that he misaddressed an e -mail, and used terms
such as “I believe,” which allegedly could indicate bias;
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c. the interim d irector told him that he was wrong to request that a meeting be
limited to 15 minutes because Complainant had cases to work on, and needed
to go to the restroom;
d. the interim director asked him to conduct a training on human relations, when
the supervisor would not give him his commitment to do so, and Complainant
had a medical appointment conflicting with the time of the training;
e. when Complainant was asked to conduct a Newcomers’ Briefing , and
Complainant responded that a named Agency employee was more qualified
do to the training, the interim director raised an older incident involving a
named EEO Specialist ;
4. Was Complainant discriminated against based on his national origin, age, sex, disability, and reprisal when:
a. management sent a legal officer, who was potential witness to his claim, with
a copy of his EEO complaint document, to mediation;
b. since the Joint Base San Antonio (“JBSA”) merger, the Agency had not paid
him equal pay compar ed to other JBSA EEO Specialists, or other singular
agency EEO Specialists, at his grade;
c. between January 16018, 2013, he became aware that office workers were spying on him during conversations and writing reports, and were reporting
their observations to upper management.
After an investigation of the complaint, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On August 27, 2018, the AJ issued a decision by summary judgment in favor of the Agency.
Based on this evidence, the AJ concluded no discrimination was established. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. It is from this decision that Complainant appeals.
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ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e. , that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine , 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basi s of a prohibited reason. See St. Mary’s Honor
Center v. Hicks , 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be fol lowed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens , 460 U.S. 711, 713- 714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services , EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy , EEOC Petition No. 03900056 (May 31, 1990).
The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint .
On or around October 1, 2010, Ft. San Houston and Randolph and Lackland Air Force Bases (“AFBs”) in San Antonio, Texas, merged to form the JBSA. The Agency became the lead agent,
and all Army personnel became Agency employees.
While employees in the Ft. Sam Houston EEO office previously had processed only civilian EEO complaints, as Agency employees , they were expected to process both civi lian and MEO
complaints. To become familiar with the Agency’s civilian and MEO complaint process, employees at the Ft. Sam Houston EEO office attended a 15- weel training course at Patrick Air
Force Base in Florida.
As a result of the training, there was a man power shortage in the Ft. Sam Houston EEO office,
and work was backed up.
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During the relevant period, Complainant was employed as an EEO Specialist at the Ft. Sam
Houston- JBSA EEO Office. He identified his disabilities as hiatal hernia, diabetes, an d hearing -
impaired.
The former EEO Director was Complainant’s first -level supervisor until she retired in April
2012. Upon the former EEO Director’s retirement, the EEO Director, who had been Complainant’s second -level supervisor, temporarily became the first -level supervisor for the Ft. Sam Houston
EEO office, while maintaining his second- level supervisory duties for the Lackland and
Randolph AFB EEO offices.
On July 5, 2015, the supervisor was temporarily promoted to Acting JBSA EEO Director until November 13, 2012, when he was transferred from Ft. Sam Houston- JBSA.
The AJ noted that in February 2012 and March 2012, Agency management asserted that none of the EEO Specialists who previously worked for the Army had received classified Agency position descriptions , and that pending an Agency audit of all positions transferred in the JBSA
merger, the same standards applicable when the EEO Specialists were Army employees were still in place.
Complainant asserted that the former EEO Director asked him “many times” about his plan to retire . The former EEO Director (Mexican -American, female, no disability, year of birth 1958,
unknown prior EEO activity) explained , however, that she asked all the EEO Specialists about
their retirement plans in order to c omplete a Voluntary Early Retirement Authority/Voluntarily
Separation Incentive Payments (“VERA/VSIP”) survey.
The former EEO Director stated that on March 26, 2012, she issued Complainant a Memorandum of Counseling. She stated that she told Complainant that if his inappropriate behavior/conduct was not corrected, she would take disciplinary action. The Memorandum addressed Complainant’s disregard of the former EEO Director’s instructions that he was not
permitted to take a complaint based on a third par ty’s request.
The A J noted that the memorandum made reference to the former EEO Director and
Complainant’s March 22, 2012 discussion regarding Complainant’s failure to follow her orders ,
and claimed that during the discussion, Complainant had used an aggr essive and threatening tone
of voice . W hen the former EEO Director had told Complainant that his actions constituted
insubordination, Complainant responded “ Then, write me up!”
The AJ also noted that the memorandum placed Complainant on notice that he wa s not permitted
to work without compensation, and that if there was a requirement for him to work extra hours,
prior to working outside his tour of duty, he must request authorization for overtime compensation.
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Complainant asserted further that the former EEO Director retaliated against him when he asked
for a second time for a reasonable accommodation by distributing his 5 MEO programs among
other EO staff member . However, the former EEO Director asserted that Complainant never
requested reasonable accom modation. She explained that employees were required to assist with
all the EEO programs “but Complainant was the Lead MEO specialist. Everyone on the EEO staff was overwhelmed with the workload and it was difficult to provide any assistance to each other. The office incurred additional duties due to the Joint Base but did not receive any
additional resources/positions to execute the program functions.”
The former EEO Director stated that she was not present for the March 29, 2012 meeting with the newly assigned EEO Director and Complainant . However, she stated that the EEO Director
inquired into Complainant’s actions which resulted in him receiving the Memorandum of
Counseling. Specifically, the former EEO Director stated “it was Complainant’s opinion that he
had done nothing wrong and proceeded to provide his explanation. [EEO Director] cited regulation s that contradicted Complainant’s actions and Complainant proceed to become
argumentative and saying he was only doing his job and providing services to a hospitalized airman and would rather suffer a write up than to deny service.”
Complainant asserted further that the former EEO Director negatively counseled him because he refused to charge overtime pay in order to prove a need to increase EO staff . The former EEO
Director stated “everyone must be compensated for their work. It is illegal to allow one’s employees to labor without compensation. Moreover, it also gives [the] wrong indication of the
need for manpower if the work is being done outside of the normal 40 hours work week, especially in a time when we were inundated with the additional duties that came with the Joint Base. Complainant was told on more than one occasion, not to work without compensation as I
could be held responsible for all owing him to do so.”
Complainant also asserted that except for BAMC training and Army complaints, the former EEO
Director did not enter any job credit on his performance and that he was never provided assistance with the 5 MEO programs . However, the for mer EEO Director explained the Air
Force “performance ratings are pass/fail. There are no requirements to include ‘job credit’ in the rating. Every staff member was expected to perform various functions of the EEO program. No one handled complaints only .”
Further, the former EEO Director asserted that Complainant was told he would not be provided MEO service . He was told by [EEO Director] that he was no longer the ‘lead’ MEO specialist.
He was still expected to assist with MEO program. Complainant was not singled out.” The
record reflects that Agency management denied that it had removed Complainant from processing MEO complaints or required him to advice customers and commanders that he would not be providing MEO services.
The AJ noted that during the EEO investigation, Complainant acknowledged he had been relieved only as the Lead MEO, and not of all MEO duties.
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The former EEO Director noted that everyone received a performance plan and received
performance ratings in 2011 and that Complainant “ was not singled out; none of the staff
members received newly signed performance plans. No one in the office has requested accommodations due to their impairments/disability.”
Complainant also asserted that from June 2010 to March 2012, the former EEO Director provided no professional counseling, or only did so rarely , to increase his chances for success .
Complainant stated that he was rarely provided overtime for his 5 MEO programs when others in
the office got to work overtime, and he was “whacked” by her on her retirement departure, T he
former EEO Director asserted that Complainant received feedback on a daily basis and that he “was always running things by me. Everyone has the opportunity to work overtime as long as funding is available…I issued a Memorandum of Counseling on March 26, 2012 because Complainant’s actions warranted it, not because I was retiring. Moreover, the memorandum was
not even part of his Official Personnel File. It was part of his supervisor’s file.” Finally, the former EEO Director denied Complainant’s claim that she showed favoritism among staff members under her supervisor. She explained “I have known and worked with a few of the staff members in another agency for more than ten years, so there may be a perception of
camaraderie, but it did not interfere with my decisions as a supervisor and equal opportunities for all employees.”
The supervisor (Irish/English/Portuguese male, year of birth 1958) stated that on March 29,
2012, he and the former EEO Director met with Complainant “to advise him that we had his complaint and that I had made contact with HQ AETC regarding his allegations. This was not an investigation. I did not ‘Yell’ at [Complainant]. Just like I did not order [Complainant] to take
leave. I suggested he take leave only if he wanted it. Immediately, [Complainant] turned my statement into something that I did not say as witnessed by [former EEO Director]...indeed [Complainant] stated that I had ordered h im to take leave. This is not true and again an example
of how he changes what’s said or occurs around him.”
The supervisor asserted that while he does not possess information to Complainant’s claims
against the EO/ADR Director but “I can attest to the f act that [former EEO Director] and
[EO/ADR Director] performed their jobs admirably and without prejudice or discriminatory practices while assigned to the Joi nt Base environment. JBSA is a very challenging assignment
and as mentioned earlier the FSH EO o ffice is complex.”
The interim director (Hispanic male, year of birth 1964) stated that while he does not have any knowledge in an investigation by the EEO Director involving Complainant not receiving due process regarding his complaint “however, I did is sue a written (oral) admonishment to
[Complainant] on the recommendation of [civilian personnel] as a result of concerns with [Complainant’s] work performance and unprofessional actions.”
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Specifically, the interim director stated at that time Complaina nt was working on a case and he
received phone calls about inappropriate actions by Complainant. He noted there were comments
“where it appeared [Complainant] was not maintaining neutrality and interjecting what, in his mind, he believed based on his personal opinion and what would be best for management, employee, civilian personnel, and legal folks . This was alarming because our role as EO
specialist was to be neutral and not exhibit what could be construed as taking sides or not being impartial. This type of behavior could be detrimental to the EO program. My role as the interim JBSA EO Director was to maintain and build on credibility for the overall program.”
Regarding Complainant’s allegation that the interim director told him he was wrong to requ est a
meeting be limited to 15 minutes when he had cases to work and needed to go to the restroom, the interim director explained that the allegation as stated “is not correct as they were two separate incidents. One incident related to [Complainant] requ esting limiting a meeting to 15
minutes and the other was [Complainant] needing to go to the restroom.” He asked the EEO Specialist to email the staff he wanted to meet everyone on August 17, 2012. Complainant responded to the EEO Specialist’s email stating that he has a lot of things to take care of and was wondering if the meeting would be 15 minutes long.
Further, the interim director stated that he responded to Complainant’s email stating it was important to meet so everyone can discuss any concerns and recommendations to improve the work environment for JBSA EO. He stated “at no point did I ever say [Complainant] was wrong to request the meeting be limited.” The interim director stated that during the meeting, Complainant mentioned he had to go t o the bathroom and “no one denied him an opportunity to
use the bathroom.”
The interim director stated that the EEO Specialist emailed the staff notifying them there would be a meeting on September 11, 2012, and Complainant responded stating he was busy a nd asked
if she could keep the meeting for fifteen minutes. The interim director noted that the EEO Specialist was frustrated with Complainant because it was the second time he challenged the length of a staff meeting and “was becoming problematic. [EEO Specialist] said [Complainant’s] negativity was impacting an already stressful and overworked team…the oral admonishment was what was warranted.”
With respect to Complainant’s allegation that since the JBSA merger occurred, the Agency had not paid him equal pay to other JBSA EEO Specialists, “or other singular agency EEO specialists,” the AJ noted that there was no evidence that after the merger, Complainant’s duties became more complex “only that his duties expanded in scope and Complainant failed to demo nstrate that his alleged unequal pay was based on a protected characteristic, rather than
being the salary offered to any person who occupied his position.”
Regarding Complainant’s allegation that between January 16- 18, 2013, he became aware that
office w orkers allegedly were spying on him during conversations and writing reports and were
reporting their observations to the Acting EEO Director, the AJ noted that Complainant’s co -
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workers and management denied spying on Complainant and he offered no evidence to support
his claim.
In sum, the evidence of record fully supports the AJ’s conclusions that the responsible management officials articulated legitimate, non -discriminatory reasons for the disputed actions
which Complainant failed to prove, by a prepond erance of the evidence, were pretext designed to
mask discrimination or unlawful retaliation.
Harassment /Hostile Work Environment
To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of h is protected basi s – in this case, h is national origin, sex, disability, age,
and prior protected activity . Only if Complainant establishes both of those elements - hostility
and motive - will the question of Agenc y liability present itself. Here, as already discussed in
detail above, Complainant simply has provided no evidence to support his claim that his treatment was the result of his national origin, sex, disability, age, and prior protected activity .
Complain ant’s claim of harassment is precluded based on our findings that Complainant failed to
establish that any of the actions taken by the Agency were motivated by retaliatory animus. See
Oakley v. U.S. Postal Service , EEOC Appeal No. 01982923 (Sept. 21, 2000).
Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show tha t accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability.
Here, Complainant claimed that management failed to provide him with a reasonabl e
accommodation . Specifically, th e AJ noted that while Complainant claimed that his disabilities
were not accommodated, he failed to establish how his alleged disabilities would be accommodated by reducing his workload. The AJ noted that Complainant clai med while
processing a MEO complaint, he “once find himself ‘without access to [his] snacks to control [his] diabetes, and that he had been fortunate that the squadron office had sodas and snacks, Complainant failed to address why he could not simply carry snacks with him at all times, as
many persons with diabetes do.” There is no evidence of record to dispute this assertion.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unla wful discrimination and retaliation occurred .
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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
operat ions 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.
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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 i n 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
February 5, 2020
Date | 2019001085.pdf | PDF | application/pdf | 30,326 |
7 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023002326.pdf | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clay M .,1
Complainant,
v.
Christine Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2023002326
Agency No. ARGORDON23DEC00510
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 6, 2023, dismissing his complaint alleging unlawful employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant w as an a pplicant for a Forensic Biologist position at the
U.S. Army Criminal Investigation Laboratory (USACIL) in Fort Gillem, Georgia .
On July 27, 2021, Complainant, a Grade GS-13 Biologist, who then worked at the medical center at Fort Gordon, Georgia, a pplied for the Forensic Biologist position that the Agency had
advertised in Job Announcement No. NCAS2NL103381U4. On August 17, 2021, USACIL management interviewed Complainant. On October 6, 2021, Complainant received notice that he was not selected. On November 9, 2021, C omplainant contacted the USACIL selecti ng
official, who was the lead employee for its DNA division for feedback on his interview and application. According to Complainant, the selection official said words to the effect that she
preferred examiners with less experience because they would stay with USACIL until after the
selecti ng official retire d.
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 2023002326
In late November 2021, Complainant communicated with the Fort Gordon EEO Office via phone
and made an inquiry about age discrimination in general. Complainant refused to provide his name and did not state that he individually intended to initiate the EEO process. On November
29, 2021, Complainant again phoned the Fort Gordon EEO Office and discussed options for
filing a complaint and his fea r of reprisal for doing so. However, Complainant continued
refusing to provide his name and did not inform the EEO specialist of intent to initiate the EEO
process. On December 2, 2021, for a third time, Complainant called an EEO Counselor at Fort
Gordon about the possibility of filing an age -based EEO complaint. During the course of that
conversation, Complainant did provide his name. However, Complainant still declined to initiate the EEO process at that time. On December 2, 2022, Complainant contac ted the EEO Counselor again, who documented
December 2, 2022, as the date of initial contact. The EEO Counselor’s report indicated that Complainant indicated that he intended to file an EEO complaint and that he would call back later. On December 8, 2022 , the Complainant formally expressed that he intended to initiate the
EEO process. The parties did not achieve solution though informal EEO counseling. Therefore, on January 6, 2023, the Agency issued Complainant notice of his right to file a formal EEO complaint. On January 25, 2023, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on age when:
a. On October 6, 2021, Complainant received Notification of Non- Selection
from USAStaffing for the position of Forensic (Examiner) Biologist, Job Announcement No. NCAS2NL103381U4; and
b. On November 9, 2021, the selecti ng official informed Complainant that
she based her hiring decision on the longevity of the section and the
selection official chose to hire a lower grade employee to ensure there
were analysts to replace other USACIL employees like herself when they retire.
On February 6, 2023, the Agency dismissed the formal EEO complaint as unti mely raised,
pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.105(a)(1). Specifically, the Agency
determined that, the applicable 45- calendar -day regulatory time limit for EEO Counselor contact
had elapsed by December 24, 2021 (45 days after the November 9, 2021 conversation with the selecti ng official), bu t that Complainant did not contact the EEO Counselor to discuss his intent
to pursue an EEO Complainant until December 8, 2022, almost one year beyond the deadline .
The instant appeal followed. On appeal, Complainant argues that the EEO Counselor improperly supported the selecti ng official’s intention to “hire individuals who will be there longer [at
USACIL].” Complainant further argued that in late November 2021, h e had made timely EEO
counselor contact when he began to communicate with the Fort Gordon EEO office that ultimately processed the present matter.
3 2023002326
Complainant maintains that, during his November 2021 communications with the EEO
Counselor, she told him tha t he had satisfied the requirement for timely EEO Counselor contact.
However, within the same appellate brief, Complainant also accused the EEO Counselor of
withholding from him about the applicable 45 -day time limit for making EEO Counselor contact.
Additionally, Complainant states that the EEO Counselor misguided him and deceived him into
believing that his claims could be filed any time. Finally, Complainant cited the Agency’s
internal EEO regulation, AR 690- 600, in support of his argument that he ha d timely provided the
EEO Counselor with sufficient identifying information and a descri ption of his grievance
concerning employment discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits. 29 C.F.R. § 1614.105(a) (1) requires that
complaints of discrimination be brought to the attention of the EEO Counselor within forty- five
calendar days of the date of the matter alleged to be discriminatory or within forty- five days of
the effective date of the personnel action. The Commission has adopted a “reasonable
suspicion” standard (as opposed to “supportive facts” standard) to determine when the 45- day
limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb.
11, 1999). Thus, the time l imitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of discrimination have become
apparent.
We find that Complainant reasonably suspected discrimination as a result of his deter mination
that the selecti ng official made alleged ageist remarks on November 9, 2021. I t is well settled
that the criterion for EEO Counselor contact is satisfied if Complainant accomplishes two steps: 1) contact with an agency official logically connecte d with the EEO process , and 2) an
expression of intent to begin the EEO process. Floyd v. Nat'l Guard Bureau, EEOC Request No.
05890086 (June 22, 1989). We acknowledge that Complainant phoned the Fort Gordon EEO office in late November 2021, on November 29, 2021 and on Decembe r 2, 2021. Complainant
met the first criteria for EEO Counselor contact when he phoned the Fort Gordon EEO Office and spoke to Agency officials who were logically connected with the EEO process. However, the record indicates that Co mplainant did not express an intention to begin the discrimination
complaint process until December 8, 2022, a date well beyond forty- five days after Complainant
reasonably suspected discrimination on November 9, 2021. Consequently, given these circumstan ces, we must find that Complainant fai led to express requisite intent to pursue an age -
based EEO complaint in his phone calls to the Fort Gordon EEO Office that had occurred in November 2021 and December 2021.
EEOC regulations provide that the Agency or this Commission shall extend the time limits when
the individual shows that she was not notified of the time l imits 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 he was prevented by
4 2023002326
circumstances beyond her control from contact ing the EEO Counselor within the time limits, or
for other reasons considered sufficient by the Agency or EEOC.
On appeal, we concur with the Age ncy that Complainant does not warrant extension of the time
limit for expressing intent to initiate the EEO Counselor contact. The Commission has
repeatedly held that mere fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC
Request No. 05970315 (July 10, 1998). We further reject Complainant’s contention that he was
unaware or misled regarding the applicable 45- day time limit since the Agency evidence d that it
gave Complainant training that included EEO processing time limits on August 27, 2021 and on July 14, 2021.
CONCLUSION
Based on the foregoing analysis, the EEOC AFFIRMS the final Agency decision dismissing Complainant's formal complaint for untimely EEO Counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Reque sts for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of thi s decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from rece ipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
5 2023002326
Alternatively, Complainant can submit his or her request and arguments to the Dir ector, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmar k, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statemen t or brief in opposition must also include proof of service on the other party,
unless Complainant files his or her reques t via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30 -day time period will resul t in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the time ly filing of the
request. Any supporting documentation must be submitted together with the 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 S tates District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil a ction,
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 process ing 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.
6 2023002326
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
May 8, 2023
Date | 2023002326.pdf | PDF | application/pdf | 13,887 |
8 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000092.pdf | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Warner A.,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2022000092
Agency No. 20DR-0010-2019100341
DECISION
On October 7, 2021, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 6, 2021, final decision concerning his equal employment opportunity (EEO) complaint
alleging 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. For the following reasons, the Commission AFF IRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS -0671- 13, at the Agency’s VA
Medical Center in Boise, Idaho. In July 2018, the Veterans Health Administration (VHA) Workforce Management and
Consultant ’s Equal Employment Opportunity/Affirmative Employment (EEO/AE) Office in
Washington, D .C. advertised for two GS -14 EEO Manager positions under Vacancy
Announcements No. CASA -10257783- CLN-18 (hereinafter Vacancy No. 7783) and CASA-
10257917- CLN-18 (hereinafter Vacancy No. 7917).
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.
2022000092
2
The Director in the Equal Employment Opportunity/ Affirmative Employment Office of the
Veterans Health Administration (EEO Director) , was the Selecting Official (SO) for Vacancy
Announcement No. 7783. Compl ainant applied for both positions. Complainant was not
selected for Vacancy No. 7783, and Vacancy No. 7917 was canceled .
On November 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color ( white), and age
(55), when , on September 17, 2018, and October 18, 2018, he was not selected for two GS -14
EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN- 18 and
CASA- 10257917- CLN- 18.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to dis crimination as alleged.
Complainant appealed the Agency’s final decision. In EEOC Appeal No. 2020000027 (April 22,
2021), the Commission affirmed the Agency’s finding of no discrimination for Vacancy No.
7917. However, regarding Vacancy No. 7783, the Commission determined the record lacked
necessary information, vacated the Agency’s finding of no discrimination, and remanded the matter to the Agency for a detailed supplemental investigation. Complainant filed a request for
reconsideration of the Commission’s decision. In EEOC Request No. 2021002985 (July 27, 2021) , the Commission denied the request and re iterated the Order for the Agency to conduct a
supplemental investigation regarding Vacancy No. 7783.
On June 11, 2021, after completion of its supplemental investigation, the Agency’s Office of
Resolution Management, Diversity and Inclusion (ORMDI) transmitted the complaint file to the
Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final A gency
decision. Upon review, O EDCA determined that the supplemental investigation did not fully
comply with the Commission’s April 22, 2021, remand Order. On June 21, 2021, OEDCA
remanded the complaint file to ORMDI for a second supplemental investigation, to ensure compliance with the Commission ’s remand Order. On August 10, 2021, after completion of its
second supplemental investigation, ORMDI transmitted the compla int file to OEDCA for a final
Agency decision. On October 6, 2021, OEDCA issued a final decision finding no
discrimination. On October 7, 2021 Complainant filed the present appeal. Complainant filed
multiple submissions in support of his appeal. Howe ver, the only timely submissions were a
brief in support of his appeal filed on October 7, 2021, and a request for an expedited decision
filed on November 6, 2021. The Commission's regulations provide that “[a]ny statement or brief
on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As such, we
will only consider the arguments in Complain ant’s two timely s ubmissions .
2022000092
3
On appeal, Complainant claims that SO has not done enough to address the barriers White males
face in employment. Complainant claims SO w as involved in the initial r eview of resumes for
Vacancy No. 7783. He argues that SO submitted scores on applicants’ resumes to the Human
Resources Specialist (HRS) because he claims SO was the only person designated to enter and
submit scores to HRS. Complainant also cites the different scores in the record for his initial
application rating as proof that SO was involved in the initial scoring of resumes. He argues SO
admitted he did not read Complainant’s resume. Complainant a rgues he would have been
selected as an “equally qualified candidate” but for rac ial discrimination. Complainant claims
SO in this case is the Director of EEO and Affirmative Employment and that the Agency should have referred this case to an entity outside of the department due to a conflict of interest. Further, Complainant argues the scoring of his application should have been higher because he
should have been given additional points for , in part, his Outstanding Performance ratings over
the past eight years and his 10 years of GS -13 EEO Manager experience. Moreover, he notes
that he had more education in the form of a B achelor of S cience (BS) in Accounting and
Business and a Master of Public Administration (MPA ) than the Selectee who had a Bachelor of
Fine Arts Degree in Graphic Design .
The Agency f iled a brief in opposition to Complainant’s appeal. The Agency states Complainant
was eliminated from the interview list for Vacancy No. 7783 by EEO Manage rs 1 and 2. The
Agency claims Complainant lacked the type of qualifications that were needed for a higher s core
for the position at issue such as experience serving on National Level EEO Committees, VISN Level EEO Committees, and EEO best practices or initiatives shared and implemented at the VISN or National Level. The Agency notes that Complainant f ailed to show that his
qualifications were superior to the Selectee’s qualifications . The Agency acknowledges that
Complainant had an impressive education; however, his academic achievements were not listed
as qualifications, competencies, or preferences for the position in question. The Agency claims Complainant has nothing more than his opinion as to how his credentials surpass those of the Selectee, which does not constitute persuasive evidence of pretext.
ANALYSIS AND FINDINGS
As this is an appeal f rom a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the docume nts,
statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”).
2022000092
4
Agency’s Investigation and Processing of the Complaint
EEOC Regulations state, in pertinent part, that the agency shall develop an impartial and
appropriate factual record upon which to make findings on the claims raised by a complainant
and defines an appropriate factual record as on e that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred. 29 C.F.R. § 1614.108(b).
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
Chap . 1, § IV.A. (Aug. 5, 2015) provides that agencies must avoid conflicts of position or
conflicts of interest, as well as the appearance of such conflicts. For example, the same agency
official(s) responsible for executing and advising on personnel actions may not also be responsible for mana ging, advising, or overseeing the EEO pre -complaint and complaint process.
Id.
EEO MD -110 Chap. 1, Chap. 9 § IV.B.2. also provides that when an employee files a complaint
alleging discrimination by the EEO Director or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO office. This matter must be addressed through
procedures designed to safeguard the integrity of the EEO complaint process. Id. For example,
when an EEO complaint alleges that the EEO Director or a member of his/he r immediate staff
discriminated, the EEO Director shall recuse himself/herself and retain a third party to conduct the counseling, and investigation and draft the final agency decision for the agency head to issue.
Id.
At the outset, we note that the Com mission’s previous decision remanded this matter for the
Agency to provide additional information regarding the selection process for Vacancy No. 7783.
As a result of the information provided in the Agency’s two supplemental investigations , we find
the re cord in this case is fully developed and the matter is ripe for review .
Complainant named officials at the Office of Workforce Management in Washington, D .C. as
responsible management officials in the instant complaint. Specifically, in his affidavit he
named SO, EEO Director, as responsible for not selecting him for Vacancy No. 7783.
Upon review, we find no indication that the EEO Director tainted the EEO process and it appears that the investigation of this matte r by the ORMDI in Pittsburg h, Pennsylvania was conducted by
an entit y separate from the EEO Director’s Office. Further, it appears the Agency’s final
decision issued by OEDCA in Washington, D .C. was approved by an individual other than the
EEO Director . Additionally , we note there is no indication that the EEO Director had any
influence over the investigation or the final decision. Moreover , we find the record is
sufficient ly developed for us to make a completely independent de termination regarding whether
or not there was discrimination . However , the Agency is reminded it must comply with MD -110
in the future and make clear in the record that no conflict of interest exists . Cruz v. Dep’t of
Defense, EEOC Appeal No. 2020000131 (July 28, 2021) , request for reconsideration denied ,
EEOC Request No. 2021004808 (Jan. 25, 2022) .
2022000092
5
Vacancy Announcement No. 7783
The Human Resource Specialist (HRS) assessed the submitted application materials for minimum qualifications and referred fourteen qualified candidates for consideration. The SO
assigned an EEO Manager at the VA Medical Center in Washington, D .C. (EEO Manager 1) and
the Lead EEO Manager at the VISN 5 VA Capital Health Care Network in Linthicum, Maryland
(EEO Manager 2) to r eview and rank the fourteen qualified candidates. The five highest scoring
applicants were referred for interviews. EEO Manager 1 and EEO Manager 2 rat ed the
applicants using the four factors identified in the K nowledge , Skills, Abilities (KSAs) required
for the job . For each KSA, applicants were assigned between one and five points. The point
values were then totaled and averaged. The five highest rated applicants were referred for an
interview. Complainant was not rated among the five highest scorin g applicants and thus, was
not referred for an interview.
An interview panel was formed to conduct initial interviews. The panel consisted of EEO
Manager 1, EEO Manager 2
2, and EEO Manager 3. SO was not a member of the interview panel
which conducted the first round of interview. Following the interviews for the top five applicants, the three highest scoring interviewees were referred to SO for a second interview. SO conducted the second round of interviews and the Selectee was chosen .
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental B iology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, s he must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas , 411 U.S. at 802; Furn co Constr. Corp. v. Waters , 438 U.S. 567, 576
(1978).
Once a complainant has established a prima facie case, t he burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine , 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks , 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711,
715-16 (1983).
2 The record reveals that EEO Manager 2 withdrew from the interview panel due to a family
emergency. Her partially completed interview scores were not used when ranking Applicants 1 -
5 during the first round of interviews.
2022000092
6
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory re ason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were moti vated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens , 460 U.S. 711. 713- 714 (1983); Complainant v. Department of
Transportation, EEOC Reque st No. 05900159 (June 28, 1990).
In the present case, the Agency articulated legitimate, n ondiscriminatory reasons for its actions.
EEO Manager 1 and EEO Manager 2 referred the top five applicants to the first round of
interviews. They determined Complainant’s application materials did not reflect the same level
of expertise, skills, and expe rience as the top five applicants, particularly with respect to :
national and/or VISN (Regional) level lead experience ; engaging in national level EEO
workgroups, committe es, and projects ; and advising senior level management . Additionally,
EEO Manager 2 found that Complainant’s resume reflected only three years of experience as an EEO Manager, “in a collateral capacity.”
In an attempt to prove pretext, Complainant speculates that SO was involved in the initial rating
and r anking of applicants ; however, the evidence in the record reveals that EEO Manager 1 and
EEO Manager 2 performed this function, without involvement by SO. Complainant claims SO
improperly failed to consider his resume. However, g iven SO was not involved in the scoring of
Complainant’s application and the fact that Complainant was not referred to SO for the first
round of interviews, there was no need for SO to review Complainant’s resume. Complainant’s
claim that SO failed to adequately address the employ ment barriers faced by Caucasian males,
without more, is insufficient to prove that the SO singled him out for nonselection based on any of his protected bases.
Complainant’s scores as determined by EEO Manager 1 and EEO Manager 2 were not high enough to place him among the top five candidates. Even if Complainant is correct about some computational errors in the scoring, he still would not have placed high enough to qualify in the
top five necessary to move on to the first interview stage . Reg arding his contention that he
should have received more points in some of the rating categories because of his “Outstanding”
performance ratings over eight of the last ten years, we note that performance ratings was not a factor given weight in the scoring . Regarding his contention t hat he had greater education than
the Selectee, we find that graduate degrees were not listed as qualifications, competencies, or
even preferences for the position at issue.
Complainant also contends that EEO Manager 2 erred in assessing his prior work experience
since she said his resume reflected three years of EEO Manager experience, but he claims his
resume showed 10 years of EEO Manager experience and he attributes EEO Manager 2’s actions
to be discriminatory animus. A review of Complainant’s resume shows that for the three years preceding his application, his position of record was Health System Specialist . He listed that he
performed a variety of functions including serving as the facility’s EEO Manager.
2022000092
7
Complainant identified his job preceding the Health System Specialist position as an
Administrative Officer which he held for approximately six years an d listed that he “performed
exact same duties as listed in the above Health System Specialist position. Please refer to the
Health Specialist description.” Complainant did not list any other specific EEO -related
experience. In contrast, the Selectee lis ted approximately 26 years of EEO -related experience,
including approximately twelve years as an EEO Manager, two years as the Director of Diversity
at a private facility, five years as an EEO Specialist, and seven years as an EEO investigator. In
these roles, the Selectee : developed an internal complaint process; developed a tracking tool for
sexual harassment complainants; served on national EEO committees; advised senior level officials; and, conceptualized and delivered national training for VHA EEO Managers . Even if
EEO Manager 2 erred in concluding that Complainant’s resume reflected only three years, as opposed to approximately nine years of related EEO experience in a collateral capacity, we find
Complainant has not demons trated that his qualifications were plainly superior to those of the
Selectee. Further, we find that EEO Manager 2’s decision to credit only three years of EEO Manager experience to be reasonable and not discriminatory.
Further, we find Complainant has n ot shown his knowledge, skills, and experience were plainly
superior to the other four applicants who were referred to the first round of interviews. The record reflects that Applicants 1 and 4 each had ten years of experience in their position of
record which was EEO Manager; Applicant 3 had five years of experience where her position of
record was EEO Manager; and, Applicant 2’s resume reflects two years of experience in which
his position of record was EEO Manager . Their application materials do not in dicate that their
EEO Manager duties were a collateral assignment – that is, in addition to the primary duties
associated with their position of record – as Complainant’s r esume seem ed to indicate.
The record further reflects that Applicants 1 - 4 each offered extensive experience developing
national and/or VISN level EEO training, engaging in national level EEO workgroups, committees, and projects, advising senior level management, and providing EEO assessment and improvements at Agency facilities – which were the primary elements of the advertised position.
Upon review, w e find Complainant failed to show that the Agency’s legitimate,
nondiscriminatory reasons were untrue. We find the record does not support Complainant’s
argument that SO orchestrated his nonselection because he is a W hite male, that his
qualifications were superior to those possessed by the Selectee, or that discriminatory bias otherwise influenced the evaluation of his application materials .
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.
2022000092
8
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
. Alternatively, Complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible po stmark, a complainant’s request to reconsider shall be deemed timely filed
if OFO receives it by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her r equest via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the 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).
2022000092
9
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 act ion, 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 cour t 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 tit led 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 28, 2022
Date | 2022000092.pdf | PDF | application/pdf | 26,153 |
9 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A42037_r.txt | Frances Tam v. United States Postal Service
01A42037
December 17, 2004.
Frances Tam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42037
Agency No. 1F-946-0033-03
DECISION
On March 12, 2003, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her
sex (female), race (Chinese), national origin (unspecified), age (dob
9/21/54), and disability (emotional stress) when she was subjected to a
hostile work environment on a continuing bases from on or about November
2001 through October 8, 2002. The agency characterized the alleged
incidents as being that: (1) the Manager, Distribution Operations,
threatened to issue her a letter of warning; (2) the Manager, Distribution
Operations, continues to have a double standard and selective enforcement
regarding a coworker.
By decision dated March 20, 2003, the agency dismissed claim (1) of the
complaint on the grounds of failure to state a claim and that complainant
failed to initiate contact with an EEO Counselor in a timely manner,
and claim (2) on the grounds of failure to initiate timely contact with
an EEO Counselor. Complainant subsequently filed an appeal with the
Commission. In Frances Tam v. United States Postal Service, EEOC Appeal
No. 01A32893 (October 15, 2003), the Commission reversed the agency's
dismissal of claim (1) on the grounds of failure to state a claim and
vacated the dismissal of claims (1) and (2) on the grounds of untimely
EEO contact. The Commission ordered that on remand the agency undertake
a supplemental investigation to determine if complainant contacted the
EEO Office concerning her harassment claim on October 9, 2002, or any
time prior to January 2003.
In its decision dated January 7, 2004, the agency recognized a third claim
in the complaint. The agency defined the incidents in claim (3) as being
that the Manager, Distribution Operations deliberately assigned tasks to
complainant that could not be completed, repeatedly withheld resources
and manpower necessary to complete assigned tasks, forced complainant
to cover for her and complainant's coworker, and held complainant
responsible for the Manager, Distribution Operations' work and the
coworker's work. The agency determined that complainant initially sought
EEO counseling on January 8, 2003, with regard to the alleged incidents,
after the expiration of the 45-day limitation period for contacting an
EEO Counselor. The agency dismissed the complaint on the grounds of
untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2).
The agency based its decision on statements obtained from the EEO
Dispute Resolution Manager and the EEO Dispute Resolution Administrative
Assistant. According to the EEO Dispute Resolution Manager, she had no
knowledge of complainant seeking EEO Counseling in October 2002. The
Manager stated that she first became aware that complainant had contacted
someone on January 10, 2003, when the Manager, Human Resources, gave her
some documents that complainant had sent to her office. According to
the Administrative Assistant, there is no record of a complaint filed
by complainant in the EEO database and the Oakland District's records
for the 2002 calendar year. The Administrative Assistant stated it is
her belief that complainant did not seek EEO counseling until January
10, 2003. The agency determined that the documents that were sent to
the Manager, Human Resources, were forwarded in an envelope postmarked
January 8, 2003. The documents included a request from complainant to
forward her claim to the EEO Office. Additionally, the agency observed
that although complainant stated that she could remember the names of five
different (non-EEO) counselors, medical personnel, and a social worker
with whom she had either telephone or personal contact on October 9,
2002, she could not recall the name of the person she spoke to in the
EEO Office. The agency further stated as to complainant's physical and
mental condition on October 9, 2002, that complainant indicated that
she had not slept for a period exceeding 24 hours. The agency observed
that if complainant did contact an EEO Counselor on October 9, 2002,
she has not explained why she waited three months before following-up
on her request for EEO Counseling. The agency therefore concluded
that assuming arguendo, complainant made timely EEO Counselor contact
on October 9, 2002, the doctrine of laches applies because complainant
made no further inquiry concerning the matter until January 8, 2003,
even though complainant stated that she was told by an EEO official to
expect a forms package in the mail.
On appeal, complainant maintains that she contacted the EEO Office on
October 9, 2002, and was informed that a note would be made of her call
and documents would be mailed to her. Complainant states that since she
had not received any paperwork or been contacted by the EEO Office by
January 2003, she decided to send her documentation to the EEO Manager's
supervisor, the Manager of Human Resources. Complainant submits a
statement from her husband in support of her position that she contacted
the EEO Office on October 9, 2002. According to complainant's husband,
he was present when complainant called the EEO Office. He states that
complainant told him when she got off the telephone that the person
she spoke with told her that she would be sent a package to complete.
Complainant states that in addition to the EEO Office, she also contacted
on October 9, 2002, the Employee Assistance Program, her physicians,
and two psychiatrists. Complainant contends that her EEO Counselor
contact also should be considered timely because she alleges a continuing
violation and that in January 2003, the Plant Manager denied her request
for a transfer to another work location. Complainant states that this
action constitutes a denial of a request for an accommodation.
Upon review of the record, we find that complainant has not submitted
sufficient evidence to establish that she initiated contact with an
EEO Counselor on October 9, 2002. The EEO Dispute Resolution Manager
stated that she had no knowledge of complainant seeking EEO counseling in
October 2002. According to the EEO Dispute Resolution Administrative
Assistant, there is no record of a complaint filed by complainant
in the EEO database and the Oakland District's records for the 2002
calendar year. The Administrative Assistant stated that she believes
that complainant did not seek EEO counseling until January 10, 2003.
We note that complainant acknowledges that she does not remember the
name of the EEO official that she spoke to on October 9, 2002. As for
complainant's claim of a continuing violation, we observe that none of
the incidents raised by complainant occurred 45 or fewer days prior to
her EEO contact. Although complainant argues on appeal that her EEO
contact can also be considered timely due to the denial of a transfer
request dated January 7, 2003, we observe that this alleged denial of
accommodation was not included as a specific claim in her complaint.<1>
We find that the argument and evidence submitted by complainant fails to
refute the agency's position that complainant did not initiate EEO contact
until January 2003, after the expiration of the 45-day limitation period.
Accordingly, the agency's decision dismissing complainant's complaint on
the grounds of untimely EEO contact was proper pursuant to 29 C.F.R. §
1614.107(a)(2) and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 17, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant is advised that she should promptly contact an EEO Counselor
if she intends to pursue this issue through the EEO process.
| 01A42037_r.txt | TXT | text/plain | 11,807 |
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