U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lamar D,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120181962 Agency No. 200I06752018101359 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's April 30, 2018 dismissal of his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Police Officer, GS-07, in the VA Police Service, at the Orlando VA Medical Center in Orlando, Florida. On March 19, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (Hispanic) when: 1. In 2014 and 2015, he was not selected for the position of Lead Police Officer, Vacancy Nos. ZY14MB1230174 and ZY15-MB1346733BU, 2. In 2016, he was not selected for the position of Criminal Investigator, Vacancy No. ZY161727568cBU, 3. In 2016, he was not selected for the position of Supervisory Police Officer, Vacancy No. ZY16MB1770297, 4. In 2016, he was not selected for the position of Criminal Investigator, Vacancy No. ZY16MB181636, 5. In 2017, he was not selected for the position of Criminal Investigator, Vacancy No. CBDI1001955417JJ, which closed on June 27, 2017,2 6. On June 6, 2017, his request for a collateral duty Criminal Investigator assignment was denied, 7. On June 14, 2017, he was required to report to work after working 18 hours during his previous shift, 8. On August 21, 2017, he was not temporarily promoted to the position of criminal investigator, and, 9. On September 13, 2017, he was advised by email that another candidate was selected for the position of Criminal Investigator, Vacancy No. CBDI10022451017MB. In 2014, Complainant accepted a position with the Agency as a GS-6 Police Officer, and left a GS-12 level position as a Federal Agent for a different agency. Complainant explained that he accepted the lower pay grade because he was still qualified for future GS-12 level opportunities, and he was told he would have ample opportunity to apply to positions at a higher level, as two new facilities were under construction. Complainant indicates that his prior work experience made him more than qualified for the positions and opportunities referenced in this complaint. During the relevant time frame, Complainant worked under two police chiefs. In July 2016, the first police chief ("PC1") was removed after an internal investigation. The alleged nonselections in Claims 1, 2, and 3 occurred under PC1. Immediately after PC1's removal, Complainant recounts that he was "finally" able to obtain a promotion to the position of Lead Police Officer, GS-7. However, Complainant alleges that his subsequent attempts to advance were thwarted by Management, particularly the police chief that replaced PC1 ("PC2"). Complainant alleges that despite his superior qualifications, PC2 blocked his career advancement by denying opportunities to gain experience, as alleged in Claims 6 and 8, and engineering his nonselection for the positions Claims 4, 5, and 9. In May 2017, Complainant was interviewed tor an internal investigation about Management's promotion practices. Complainant alleges that fearing retaliation, he did not fully answer the interviewer's questions. Afterward, a supervisor asked him twice about the interviews which Complainant interpreted as either "some type of intimidation tactic or just a way to gather information to later use against [him]." Ultimately, the Criminal Investigator and Deputy Chief of Police were removed from their positions. CP2 remained as the Chief, and appointed one of the captains to the temporary Criminal Investigator vacancy instead of Complainant (Claim 8). The Agency dismissed Complainant's complaint for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency alternately dismissed Claim 5 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Complainant initiated contact with an EEO Counselor on December 12, 2017, more than 45 days after September 13, 2017, the date of his most recent allegation. However, Complainant contends that he did not pursue the allegations in Claims 1 through 8 earlier out of fear of retaliation by Management. For Claim 9, Complainant insists that he did not receive the Agency's September 13, 2017 email notice that the position had been filled, and provides evidence that he did not reasonably suspect discrimination until November 6, 2018. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Claims 1 through 8 The Commission has consistently held that fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO counselor. See Parker v. Dep't of Veterans Affairs, EEOC Request No. 0519940436 (Feb. 9, 1995). However, an extension is justified where a complainant's fear of reprisal is based on "severe intimidation," such as a supervisor's threat to fire an employee if he files a complaint. Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998) (finding that fear of reprisal does not justify untimeliness when complainant articulates no concrete reason to fear retaliation, and complainant's fear is not credible given complainant's prior EEO contact.)3 Between 2014 and July 2016, while CP1 was Police Chief, Complainant describes an atmosphere that could cause fear of reprisal based on "severe intimidation." Complainant alleges that his supervisor at the time ("S1"), a coworker ("C1") and "others" made statements that CP1 was "vindictive." CP1 was believed to be close friends with the Union President, and "could get anyone fired effortlessly." S1 allegedly told Complainant that CP1 was "racist" and described an specific incident when CP1 improperly fired an employee. Complainant had the impression that his immediate supervisors, including S1 (despite his stated animosity toward CP1) were very friendly with CP1. Complainant alleges that a coworker confided in him shortly after they were both hired, that she was being sexually harassed. Complainant also recalled that S1 routinely made offensive comments about Puerto Ricans in his presence. Complainant recounts that both he and his co-worker contemplated leaving the Agency rather than report the harassment. Complainant also alleges direct retaliation from S1 and other supervisors, such as bullying and forced overtime but appears not to have reported it while CP1 was still with the Agency. The alleged discriminatory acts in Claims 1, 2 and 3 occurred prior to CP1's removal. Assuming arguendo, that working under PC1 caused Complainant to experience "severe intimidation," the 45-day limitation period to contact an EEO Counselor would have been triggered upon PC1's removal in July 2016. Complainant first raised Claims 1, 2, and 3 with an EEO Counselor on March 2018, well over the 45-day deadline had passed. As Complainant has not provided adequate justification for the additional delay, Claims 1, 2, and 3 were properly dismissed. After CP1's removal, there is no indication that Complainant feared retaliation generally, let alone "severe intimidation." During this timeframe, Complainant filed grievances against Management. He also felt comfortable disclosing to both the Union President and multiple HR employees, on multiple occasions, that he believed CP2's promotion process was unfair. Complainant specifically referenced positions listed in the instant complaint. Given Complainant's actions, "fear of retaliation" is not an acceptable explanation for untimely EEO contact about the allegations in Claims 4, 5, 6, 7, and 8. Claim 9 Complainant contends that reasonable suspicion for Claim 9 did not exist by September 13, 2017 because to his knowledge, the alleged discriminatory act, nonselection, had not happened yet. On October 27, 2017, he asked the Acting Deputy Chief ("ADC") if the Criminal Investigator, GS-11, position had been filled yet. The ADC responded that an offer had been made, but the candidate declined. Complainant confirmed with HR that the position was still open and he verified that he was on the list of certified eligible GS-11 candidates. On appeal, Complainant provides evidence in the form of a November 2, 2017 email from the ADC, entitled "Criminal Investigator Interview." The email provides: "You have been selected to interview for the Criminal Investigator (GS-11) position. Your interview date is scheduled for November 6, 2017 at 1300 hours...[located] in room 4H823." Complainant interviewed with a 3-person Panel on November 6, 2017. On November 15, 2017, he learned that the position had been filled. Based on Complainant's account in his Formal Complaint, we find that reasonable suspicion arose during the November 6, 2017 interview. Complainant states that "it was immediately apparent that the board had already made their decision." Complainant noticed that the questions were very general, none of the interviewers took notes, and one was on his phone during the interview, so it was "obvious to [his] eyes that the Panel was not being fair." The Agency does not dispute that Complainant interviewed for the position on November 6, 2017. Complainant established that through November 6, 2017, he lacked reasonable suspicion because he was told that the position was still open, he was on the list of eligible candidates, and he had been scheduled for a Panel interview. The Agency's proffered evidence, a September 13, 2017 email to Complainant, explaining that the position had been filled, is insufficient to meet its evidentiary burden. Even if Complainant received it, the Agency's subsequent actions would overcome reasonable suspicion of discrimination. CONCLUSION We AFFIRM the Agency's dismissal of Claims 1 through 8, and REVERSE the Agency's dismissal of Claim 9. Claim 9 is hereby REMANDED to the Agency for further processing in accordance with this Decision and the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (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 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 August 16, 2018 __________________ 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 did not apply for this position and the vacancy announcement was rescinded. 3 The Commission has generally held that complaints involving other administrative proceedings, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). Here, Complainant's alleged fear of retaliation arises from experiences that are largely outside EEOC jurisdiction, but at this stage could be considered indicia of a credible fear of retaliation were Complainant to report discrimination covered under an EEO statute. Specifically, Complainant alleges that he experienced retaliation after notifying Management that it was in violation of safety protocol by requiring him to work additional overtime (e.g. Claim 7) and deliberately delaying processing his Workers Compensation claim. See United States Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002); Demarcus I. v. United States Postal Serv., Appeal No. 0120161563 (Aug. 12, 2016). Similarly, Complainant's allegation that Management retaliated against him for reporting alleged infractions of the Collective Bargaining Agreement (e.g. Claim 7) must be raised with the Union, and Complainant's allegations of unethical management practices, such as allegedly falsifying documents are covered under the Whistleblower Protection Act, not the EEOC. See Eng v. United States Postal Serv., EEOC No. 0120052627 (Jun. 28, 2005); Reavill v. Dep't of the Navy, EEOC Appeal No. 05950174 (July 19, 1996). Finally, the proper forum for Complainant to challenge actions related to the internal affairs investigation is generally within that proceeding itself, not the EEOC. See Complainant v. Dep't of Justice, EEOC Appeal no. 0120113279 (Mar. 20, 2013). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181962 8 0120181962 9 0120181962