Avery S.,1 Complainant,v.Dr. Ernest Moniz, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120142062 (E.E.O.C. Mar. 29, 2016)

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

Avery S.,1
Complainant,

v.

Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120142062

Agency No. 13-0120-BPA

DECISION

Upon review, the Commission finds that the Agency’s final decision dated April 7, 2014,
dismissing Complainant’s complaint due to untimely EEO Counselor contact is proper pursuant
to 29 C.F.R. § 1614.107(a)(2).

In his complaint filed on September 30, 2013, Complainant alleged discrimination based on
age (over 40) when he was not selected for multiple vacancy announcements he applied from
June 9, 2010, through February 14, 2013. The record indicates that Complainant contacted an
EEO Counselor regarding his complaint on September 30, 2013, which was beyond the 45-day
time limit set by the regulations.

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory
event, or the effective date of an alleged discriminatory personnel action. It is noted that the
Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts”
standard) to determine when the limitation period is triggered under the EEOC Regulations.
See 29 C.F.R. § 1614.105(a)(2); Ball v. United States Postal Service, EEOC Request No.
05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the facts that would support a
charge of discrimination have become apparent.
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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Complainant acknowledged that he did not contact an EEO Counselor regarding the alleged
incidents in a timely manner; he had “ongoing suspicions” about the Agency’s improper
actions; and his age was “likely a factor” in the selections process. Complainant indicated that
he timely contacted an EEO Counselor within 45 days from July 16, 2013, the date that the
Agency Inspector General issued a Management Alert concerning its improper hiring practices.

After a review of the record, we find that Complainant knew or reasonably should have
suspected discrimination concerning the alleged nonselections at the time of his nonselections
and not when he became aware of a supporting evidence, i.e., when the Agency issued its July
16, 2013 Management Alert memo, which might or might not prove the alleged
discrimination. Thus, we find that Complainant failed to present adequate justification to
warrant an extension of the applicable time limit for contacting an EEO Counselor.

Accordingly, the Agency’s final decision 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).

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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

March 29, 2016
Date