Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jul 10, 2014

0120141519 (E.E.O.C. Jul. 10, 2014)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120141519

Agency No. FBI-2013-00239

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
February 12, 2014, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
dismissal.

BACKGROUND
At the time of the events giving rise to this complaint, Complainant was an applicant for the
position of Special Agent with the Agency. As part of his pre-employment screening,
Complainant was required to undergo a polygraph test administered by the Agency. This
Agency polygraph was administered on January 28, 2013. On February, 6, 2013, Complainant
received a letter from the Agency informing him that his background check was being
terminated.

On September 4, 2013, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race/national origin (Hispanic) and age (37)
when, on February 6, 2013, he received a letter stating that his background investigation for
the position of Special Agent was being terminated.

On February 12, 2014, the Agency issued a final decision dismissing the complaint. As an
initial matter, the Agency noted that it was evident that Complainant was 37 years old at the
time of the challenged action. Since the ADEA only covers individuals 40 years of age and
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older, the Agency dismissed Complainant’s age discrimination claim pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.

Next, the Agency determined that the complaint should be dismissed pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO counselor contact. The Agency found that the challenged
action occurred on February 6, 2013, but Complainant did not initiate EEO counselor contact
until June 20, 2013. In response to the Agency’s request for an explanation for the delay,
Complainant explained that the February 6, 2013 letter did not provide a reason for the
termination; therefore, he initiated a Freedom of Information Act/Privacy Act (FOIPA) request
to obtain a copy of his employment application file. While waiting for a response to his
FOIPA request, Complainant claimed that he learned that the reason for the termination of his
application was his failure to pass the polygraph test. Further, Complainant asserted that he
consulted with an independent polygraph expert who informed him that the Agency polygraph
he had described deviated from recommended American Polygraph Association standards.
Complainant claimed that it was then that he began suspecting that he had been the victim of
discrimination. Based on this information, Complainant wrote a letter to the Agency on April
8, 2013, appealing the determination and requesting a polygraph retest. Complainant
subsequently received a letter from the Agency dated April 16, 2013, denying his request.

The Agency noted that Complainant did not identify the date on which he developed the
suspicion; however, he did write a letter to the Agency appealing the decision and requested a
retest on April 8, 2013. Thus, the Agency determined that Complainant developed a
reasonable suspicion of discrimination no later than this date and, therefore, the 45-day period
began to run no later than this date. The Agency found that Complainant still waited 73 days
to initiate EEO counseling. As a result, the Agency dismissed the complaint for untimely EEO
counselor contact.

Alternatively, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.106(b) as
untimely filed. Complainant received the Notice of Right to File on August 15, 2013;
however, Complainant’s complaint was postmarked September 4, 2013, outside of the 15-day
filing period. Complainant explained that the reason for the delay was “administrative
oversight.” The Agency determined that Complainant had not provided adequate justification
for tolling the 15-day period and found that the complaint should also be dismissed as
untimely. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant requested that the investigation of his complaint continue and
reiterated his allegation of discrimination and irregularities in the Agency polygraph process.
He asked for an explanation of his disqualification or a copy of the polygraph results, noting
that “the presumption of discrimination becomes stronger” without an explanation from the
Agency. Accordingly, Complainant requests that the Commission reverse the Agency’s
dismissal.

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ANALYSIS AND FINDINGS
A party alleging discrimination must initiate EEO counselor contact within 45 days of forming
a reasonable suspicion of discrimination. 29 C.F.R. § 1614.105(a)(1); See Howard v. Dep’t
of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). The time limit for initiating EEO
counselor contact begins to run as soon as a reasonable suspicion of discrimination is formed,
not when the complainant has discovered all the facts necessary to support a finding of
discrimination. See Shaer v. Dep’t of Transp.

, Appeal No. 01A53228 (Sept. 23, 2005).
Complainant asserts that he “began suspecting” that he had been the victim of discrimination
after consulting with an independent polygraph expert. Thus, the record indicates that this
reasonable suspicion was formed prior to Complainant’s April 8, 2013 letter asking for
reconsideration of the Agency termination decision and requesting a polygraph retest.
On appeal, Complainant failed to adequately explain why he did not initiate EEO counselor
contact until June 20, 2013, far more than 45 days past the time period when he first developed
a reasonable suspicion of discrimination. Further, Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact. Accordingly, the decision of the Agency dismissing Complainant’s appeal is
AFFIRMED.1

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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

1 Because we affirm the Agency’s dismissal of the complaint for the reasons stated herein, we
find it unnecessary to address the Agency’s alternative grounds of dismissal.
(EEO MD-110), at 9-18 (November 9, 1999). 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 10, 2014