Hai C.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171717 (E.E.O.C. Nov. 29, 2018)

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

Hai C.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120171717

Hearing No.: 570-2015-00690X

Agency No. 2014ATL038

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's February 27, 2017 Final Order concerning 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. The Agency’s decision dismissing
the complaint is AFFIRMED.

At the time of events giving rise to this complaint, Complainant worked as an Energy Resource
Manager, GS-0801-15, at the Agency’s facility in Fort Belvoir, Virginia. On October 7, 2014,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the bases of sex (male) and age (62) when he was not selected for the position of Director,
Facilities Energy and Privatization, under vacancy announcement number: SES-1017324-SD.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request hearing before an EEOC Administrative
Judge (“AJ”). Complainant requested a hearing. On February 15, 2017, the AJ dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to

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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timely contact an EEO Counselor. The Agency issued its Final Order adopting the AJ's decision.
Complainant appealed.

We find that the Agency (and AJ) properly found that Complainant failed to contact an EEO
Counselor within the 45-day time limit required by 29 C.F.R. § 1614.107(a)(2). Complainant’s
own declaration established when he suspected discrimination, which was before the actual
selection. When describing the interview with the selecting official, Complainant stated:

I found his response very peculiar behavior and over-reactive as it was obvious he
had a selectee in mind to emphasize the privatization aspect so heavily and
downplay the facility energy requirements of the position. It became obvious by
his questions (or lack of structured questions) that the interview was just a
formality or hoop to jump through in order to complete a process requirement in
order to give the appearance of fairness in the hiring process. I felt then that he
was discriminating against me as both my sex and age were not conforming to his
pre-selection of a younger woman.

Complainant stated he was aware of the selection at the latest in June 2014. Complainant did not
contact an EEO Counselor until more than 45 days later on August 26, 2014. Complainant has
not provided any persuasive reason to extend the time limit for contacting an EEO Counselor.

CONCLUSION

Accordingly, we AFFIRM the Agency's final order dismissing the complaint.

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.
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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
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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

November 29, 2018
Date