0120180730
03-05-2018
Bruce P.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bruce P.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120180730
Agency No. HSICE010992017
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 14, 2017, dismissing his complaint alleging 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 an Assistant Field Office Director, GS-14, at the Agency's Enforcement and Removal Operations facility in New York, New York.
On March 9, 2017, Complainant sought EEO counseling, and on June 21, 2017, filed a formal complaint alleging that the Agency subjected him to discrimination based on his national origin (Greek) when he was not reinstated into the law enforcement retirement plan.
According to Complainant's formal complaint, effective August 21, 2005, he was moved from the law enforcement retirement plan to the non-law enforcement retirement plan. He states that in June 2015, he became aware that two other employees (Hispanic and Irish descent), similarly situated to him, were allowed to remain in the law enforcement retirement plan. In light of this new information, Complainant sought advice from the Federal Law Enforcement Officers Association (FLEOA). He stated that in June 2015, the FLEOA sent a letter to the Agency requesting that Complainant be reinstated to the law enforcement retirement plan. He represents that on September 30, 2015, the Agency's Deputy Human Capital Officer responded to the FLEOA letter, denying Complainant's request to reinstate him to the law enforcement retirement plan.
Complainant, with the assistance of FLEOA, engaged in an effort with Agency management to have this decision reconsidered, but received no response. He then contacted his Congressman, and states that he received a letter from the Congressman's office on January 25, 2017, containing a response from the Agency reiterating that Complainant would not be reinstated to the law enforcement retirement plan.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant argues that he sought EEO counseling within 45 days of his receipt of the letter from his Congressman forwarding the Agency's response.
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 record discloses that Complaint was moved to the non-law enforcement retirement plan in 2005, but not initiate contact with an EEO Counselor until March 9, 2017, nearly 12 years later and well beyond the forty-five (45) day limitation period.
The Commission has adopted a "reasonable suspicion" standard (to determine when the forty-five (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. According to Complainant he developed a reasonable suspicion of discrimination by August 2015, nearly two years before he sought EEO counseling, when he learned of other similarly situated employees who retained their law enforcement retirement plan. This was still well beyond the 45-day limitation period.
To the extent that Complainant utilized other procedures to challenge the Agency's decision during the relevant time period, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Even if we consider the Agency's decision to be its response to FLEOA's request to reconsider its 2005 decision in light of the alleged disparate treatment of other employees, Complainant has conceded that on September 30, 2015, he received the Agency's Deputy Human Capital Officer response to the FLEOA letter, denying Complainant's request to reinstate him to the law enforcement retirement plan. This again was well beyond the limitation period.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 5, 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.
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