Carolyn M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120172397 (E.E.O.C. Oct. 25, 2018)

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

Carolyn M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120172397

Agency No. NRCS201700447

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission
(“EEOC” or “Commission”) from the Agency's June 9, 2017 final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Program Specialist, GS-11, at its Natural Resources Conservation Service ("NRCS") facility in
Jackson, Mississippi.

On June 7, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of race (African-American) and sex (female) when:

On October 12, 2016, she was not selected for the position of Realty Specialist,
GS-12, Jackson, Mississippi (Vacancy Announcement No. NRCS-16-1307-M).

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 alleges that when she became aware of her non-selection on October 12, 2016, she
had already been performing the “exact” duties of a Realty Specialist, GS-12, in the Jacksonville
office for two years, with “superior” performance ratings, and positive feedback. Complainant
suspected the hiring process was unfair when she asked management officials for feedback on
why she was not selected. Complainant argues that her superior qualifications were confirmed
when she was tasked with training the selectee on the position. Complainant first learned of the
selectee’s sex and race when he reported to work on December 12, 2016, which ultimately gave
rise to the instant complaint.

The Agency dismissed Complainant’s complaint for untimely contact with an EEO Counselor,
pursuant 29 C.F.R. § 1614.107(a)(2), § 1614.105(a)(1). The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 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. In turn, 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.

Here, although Complainant first learned of her non-selection on October 12, 2016, she did not
contact an EEO counselor regarding the matter until March 10, 2017, beyond the 45-day
limitation period. On this basis, the Agency dismissed the complaint.

However, 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). It is well
established that an 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).

Complainant has persuasively argued that while she suspected that the selection process was
unfair, she did not reasonably suspect discrimination until S1’s first day of work on December
12, 2016, when she became aware of S1’s race and sex. However, even starting the limitation
period on December 12, 2016, Complainant still did not contact an EEO counselor until March
10, 2017, more than 45 days later.

On appeal, Complainant appears to argue that her complaint was timely filed, as she raised her
discrimination allegation in an informal grievance filed on December 14, 2016.
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Complainant provides documentation that she observed the time frames stipulated in the
grievance process, and that she contacted an EEO Counselor two days after receiving a dismissal
of her grievance. We are not persuaded to waive the limitation period on these grounds. 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 Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Moreover, the
Agency provided training records demonstrating that Complainant was expressly notified of the
45-day limitation period for EEO contact.

CONCLUSION

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.
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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

October 25, 2018
Date