_________________,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120120084

Agency No. 200P06912011104042

DECISION

Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 10, 2011, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the
Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked
as a Cook at the Agency’s Healthcare Administration facility in Los
Angeles, California.

On August 16, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American) and sex (female) when:


1. she learned in January 2010, that the Agency had failed to correctly
prepare the paperwork necessary to return Complainant to her WG-6 pay
grade; and

2. in January 2010, she learned that following an Agency
reduction-in-force (RIF), a male co-worker was downgraded to a WG-5
while Complainant was downgraded to a WG-4 pay grade.

The Agency dismissed claim the instant matter as untimely in accordance
with EEOC Regulation 29 C.F.R. § 1614.107(a)(2).  Specifically,
the Agency found that Complainant’s contact of an EEO Counselor on
July 8, 2011, regarding events occurring in January 2010 was untimely.
In its final decision, the Agency also indicated that Complainant’s
claims were not so severe and pervasive as to alter the conditions
of Complainant’s employment.  In that regard, the Agency determined
that Complainant failed to raise a claim of hostile work environment.
The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.

EEOC regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.

The record in this matter indicates that in January 2010, Complainant
learned that following an Agency RIF action, she was downgraded
two pay grades from a WG-6 to a WG-4 while her male counterpart was
only downgraded to a WG-5 pay grade.  The record indicates that she
contacted the Union regarding her concerns and was advised that it was
“[Complainant’s] word against those on the administrative level.”
On appeal, Complainant contends that she spoke with “two officials on
the administrative level regarding [her] concerns,” but still received
no resolution.  Complainant further contends that in July 2011, she ran
into a longtime friend and former co-worker who now worked in another
part of the Agency and discussed her situation with him.  According to
Complainant, her friend asked several questions about the RIF action,
and her downgrade to grade WG-4 after which he advised Complainant that
she may have a claim in violation of the Equal Pay Act.  Complainant
further indicates that her friend advised her that her concerns may
also raise issues of racial and or sex discrimination in violation of
discrimination laws.

Following the meeting in early July 2011 with her former co-worker,
Complainant contacted an EEO Counselor on July 8, 2011.  Complainant
argues that prior to the conversation with her former co-worker, she had
no knowledge of the EEO process, her rights and obligations under the
EEO process, including the duty to contact an EEO Counselor within 45
days of the alleged discriminatory conduct, or even that her concerns
could constitute unlawful racial or sex discrimination.

In its final decision, the Agency maintains that Complainant knew or
should have had a reasonable suspicion of discrimination and information
regarding the relevant EEO time limitations in July 2010, when she
discussed the matter with her former co-worker.  We note here that
on appeal, Complainant acknowledges that in her formal complaint she
erroneously indicated the meeting with her former-co-worker occurred
in July 2010, when in fact it occurred in July 2011.  The record also
contains a copy of a statement from Complainant’s former-coworker
indicating that in “early July 2011 just prior the July 4 Independence
Day Holiday, as a former co-worker, I did speak with [Complainant]
regarding some issues she was having which concerned her being downgraded
during a previous Reduction in Force in her Service, which is Food and
Nutrition.”

Complainant’s co-worker further indicates in his statement in support
of the instant appeal, that

“At the time the only issue she had or was aware of in terms of a
possible violation was that it appeared that she was downgraded to a lower
grade than her co-worker. She seemed very frustrated in the lengthy delays
in responding to her concerns from the management and union officials
from which she was seeking a response regarding this matter…During
our lengthy conversation and based upon her response to my questions,
I can truthfully state that until I informed her of the possibility
that this matter may include discrimination based upon race and gender,
a hostile work environment, as well as a violation of the Equal Pay Act,
[Complainant] …was unaware that this matter appeared to be more of an
EEO related issue than a union matter and that she was certainly unaware
of the 45 day EEOC time limit in filing an EEO complaint, as she has
never before filed an EEO complaint.”

In the instant matter, Complainant argues that she was unaware of the
applicable time periods for EEO Counselor contact.  We further note that
the Agency has not indicated that constructive knowledge can be imputed
to Complainant by showing, for example, that Complainant received EEO
training or that EEO posters containing the time limits are posted
throughout the facility.  The Commission has held that were there
is an issue of timeliness, “[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness.”  Guy v. Dep’t of Energy, EEOC Request No.  05930703
(January 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request
No. 05920506 (August 25, 1992)).  In addition, in Ericson v. Dep’t of
the Army, EEOC Request No. 05920623 January 14, 1993), the Commission
stated that “the agency has the burden of providing evidence and/or
proof to support its final decisions.”  See also Gens v. Dep’t of
Defense, EEOC Request No. 05910837 (January 31, 1992). Following a review
of the record, we find that the Agency has not satisfied its burden of
establishing that Complainant knew or should have known of the applicable
time limits.  We therefore find her July 8, 2011 EEO Counselor contact
timely.  In reaching this conclusion, we are persuaded that Complainant
was not aware of the relevant time limitations in the EEO process or
that her claims may constitute racial and or sex discrimination.

The Commission also notes here and without deciding the merits of the
claim, to the extent that Complainant also raises a claim of hostile work
environment, we find that the Agency’s dismissal of Complainant’s
claim as untimely was improper.
CONCLUSION

For the reasons stated herein, the Commission REVERSES the Agency’s
final decision and REMANDS the claims to the Agency for additional
processing in accordance with this Decision and the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108.  The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final.  The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time.  If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013.  The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant.  If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order.  29 C.F.R. §�
�1614.503(a).  The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.”  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:

1.	The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2.	The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013.  In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.  The request or opposition must also include
proof of service on the other party.

Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request.  Any supporting documentation
must be submitted with your request for reconsideration.  The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances.	See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative
processing of your complaint.  However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision.  In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission.  If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security.  See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within
the sole discretion of the Court.  Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 21, 2012

__________________
Date

2
0120120084





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




2
0120120084