U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynne E.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152408 Hearing No. 510-2012-00196X Agency No. 200I-0675-2011-104905 DECISION Complainant filed a timely appeal with this Commission from the Agency's final order dated May 20, 2015, implementing the dismissal by an Administrative Judge (AJ), of her formal 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 During the period at issue, Complainant worked as a GS-6 Program Support Assistant at the Agency's Medical Center in Orlando, Florida. On September 20, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On October 17, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race and sex when: 1. on or about April 25, 2011, Complainant was not selected for the position of Personnel Security Specialist, GS-080-9, under Vacancy Announcement Number ORL-10-229-LH, despite her professional experience and qualifications. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC AJ. Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant filed a response. Based on the evidence gathered during the investigation, the AJ made the following findings: The EEO Counselor's Report reflected that Complainant did not seek informal EEO counseling until September 20, 2011. The Selectee who was hired for the position at issue entered duty on June 19, 2011. The Agency states that Complainant did not seek informal EEO counseling until 93 days after the Selectee reported for duty. Under Article 23 of the relevant Collective Bargaining Agreement, if interviews are used, all candidates must be interviewed if reasonably available. Likewise, pursuant to the Agency's 2008 Orlando Merit Promotion Plan, if interviews are conducted, all applicants referred on any one certificate will be interviewed if any one applicant on that same certificate is interviewed. Complainant contends that the hiring officials departed from policy by conducting interviews that did not include her and that she did not learn of this until August 30, 2011. Complainant contends that the revelation alerted her that she was the likely victim of unlawful discrimination. Complainant contends that although she was notified of her non-selection on April 25, 2011, she did not develop reasonable suspicion until August 30, 2011. Consequently, Complainant argues that her contact with an EEO counselor on September 20, 2011 was timely because it was made within 45 days of when she became aware that an act of discrimination had been committed against her. On May 11, 2015, the AJ issued a decision dismissing the complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ determined that Complainant did not provide sufficient evidence to support her contention that she did not develop reasonable suspicion until August 30, 2011. The AJ determined that Complainant, at the very least, would have developed reasonable suspicion no later than April 27, 2011, when Complainant became aware that Human Resources was providing her conflicting information regarding her qualifications for the subject position, i.e., (a) that she was qualified and referred for consideration, as opposed to (b) her not meeting the time-in-grade requirements for a promotion, rendering her unqualified. Additionally, the AJ determined that the evidence established that although the Selectee began working for the Agency, in the position at issue, as early as June 19, 2011, Complainant waited approximately three months after the Selectee began working before initiating informal EEO contact on September 20, 2011. Complainant also waited almost five months after she had been rejected without having had an opportunity to interview before initiating informal EEO contact. On May 20, 2015, the Agency issued a final order adopting the AJ's procedural decision dismissing Complainant's complaint on the grounds of untimely EEO Counselor contact. The instant appeal followed. Complainant does not raise any new contentions on appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. 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 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 his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). The record discloses that the alleged discriminatory event occurred on or about April 25, 2011, but that Complainant did not initiate contact with an EEO Counselor until September 20, 2011. This action was more than forty-five days after the alleged discriminatory event. Here, the record demonstrates that Complainant had ample opportunity to develop reasonable suspicion before August 30, 2011, the date in which Complainant claims to have developed reasonable suspicion. Complainant has not asserted that she was unaware of the EEO Complaint process, or the necessity for contacting an Agency EEO Counselor within 45-day of the alleged discriminatory event. In sum, Complainant has not presented adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. CONCLUSION The Agency's final action implementing the AJ's decision to dismiss the formal complaint for failure to initiate contact with an EEO Counselor in a timely fashion is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (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 December 11, 2015 __________________ 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 0120152408 2 0120152408