Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Jul 18, 2014

0120141467 (E.E.O.C. Jul. 18, 2014)

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

Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120141467

Agency No. DOIBIA130379

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
February 6, 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, we AFFIRM the final agency decision in part and
REVERSE and REMAND in part.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information
Specialist at the Agency’s Bureau of Indian Education facility in Bloomington, Minnesota. On
September 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and age (52) when:

1. On June 24, 2013, he became aware that his then division Associate Deputy
Director approved an organizational chart depicting his position as a GS-0301-
11/12 instead of a GS-0301-12.

2. A memorandum dated April 3, 2013, from the Director Human Resources
Office notified Complainant that his application for Voluntary Early Retirement
Authority/ Voluntary Separation Incentive Payment was not approved.

The Agency dismissed Claim 1 for failure to state a claim and dismissed Claim 2 for untimely
EEO counselor contact. With regard to the first claim, the Agency found that Complainant had
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not been aggrieved by the incident since he remains a GS-0301-12. Regarding the second
claim, the Agency found that Complainant’s initial EEO Counselor contact occurred on June
18, 2013, which is beyond the 45-day time limit for timely contacting a Counselor.

On appeal, Complainant does not dispute that he failed to make timely EEO counselor contact.
Complainant contends, however, that he was unaware of the 45-day time limit because he did
not see any EEO Counselor contact posters in the building in which he worked. Complainant
also asserts that the matters raised in his complaint rendered him aggrieved.

ANALYSIS AND FINDINGS
Claim 1- Failure to State a Claim

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an
Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a
complaint from any aggrieved employee or applicant for employment who believes that he or
she has been discriminated against by that Agency because of race, color, religion, sex,
national origin, age, or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). The
Commission’s federal sector case precedent has long defined an “aggrieved employee” as one
who suffers a present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Dep’t of the Air Force

, EEOC Request No.
05931049 (Apr. 21, 1994).
According to the EEO counseling report, Complainant contends that an incorrect depiction of
his grade on an internal organizational chart is an adverse employment action. Complainant,
however, did not suffer any adverse employment action by the Agency because he remains a
GS-0301-12. Thus, we find Complainant has not shown how he suffered a personal harm to a
term, condition, or privilege of his employment. Accordingly, the Agency’s decision to
dismiss claim 1 for failure to state a claim is AFFIRMED.

Claim 2 – Untimely EEO Counselor contact

Complaints of discrimination should be brought to the attention of an EEO Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case of personnel action,
45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). A “reasonable
suspicion” standard (as opposed to a “supportive facts” standard) is applied to determine when
the 45 day limitation period is triggered. See Howard v. Department of the Navy
. 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.
, EEOC
Request No. 05970852 (February 11, 1999)

The Agency or the Commission shall extend the 45-day time limit when the individual shows
that he was not notified of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter or personnel action
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occurred, and that despite due diligence he was prevented by circumstances beyond his control
from contacting the Counselor within the time limits. 29 C.F.R. § 1614.105(a)(2). The Agency
has the burden of producing sufficient evidence to support its contention that it fulfilled its
statutory duty of conspicuously posting EEO information or otherwise notifying Complainant
of his rights. Schrader v. U.S. Postal Serv.

, EEOC Appeal No. 0120083732 (April 15, 2010).
Upon review, we find that the Agency has not produced sufficient evidence to establish that
Complainant had actual or constructive notice of the time limit for contacting an EEO
counselor. It does not provide any evidence in the record that EEO posters or notices were on
display in Complainant’s work facility. The Commission has found that constructive
knowledge will not be imputed to a Complainant without specific evidence that the posters
contained notice of the time limitation for contacting an EEO Counselor. See DeNucci v.
Dep’t of the Interior, EEOC Appeal No. 01991888 (Aug. 28, 2000) citing Pride v. U.S. Postal
Serv.

, EEOC Request No. 05930134 (Aug. 19, 1993). Nor does the Agency provide
persuasive evidence that Complainant was otherwise notified of the procedures for filing an
EEO complaint at any time during his employment with the Agency. Therefore, the Agency’s
decision to dismiss the complaint for untimely EEO contact is REVERSED.

CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s claim 1 is AFFIRMED.
The dismissal of claim 2 is REVERSED and claim 2 is REMANDED to the Agency for
processing in accordance with the following order.

ORDER

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 becomes final. 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 becomes final, 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.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
0120141467

4
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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

(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

(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
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).

0120141467

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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

(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 18, 2014