Harry A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Nov 19, 2018

0120182751 (E.E.O.C. Nov. 19, 2018)

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

Harry A.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120182751

Agency No. HSCBP004312018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 13, 2018, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Supervisory Customs and Border Protection
Officer (SCBPO) - Instructor, 1895, GS 13, at the Agency’s Federal Law Enforcement Training
Center in Glynco, Georgia.

On November 21, 2017, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.

On February 15, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination based on disability when:

on June 30, 2017, the Supervisory Mission Support Specialist offered
Complainant a hardship transfer to Miami or Port Everglades, Florida at a lower
pay grade.

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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In its August 13, 2018 final decision, the Agency dismissed the formal complaint for untimely
EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that
Complainant’s initial EEO Counselor contact was on November 21, 2017, which it found to be
beyond the 45-day limitation period.

The instant appeal followed. On appeal, Complainant argues that the EEO Counselor contact
was timely. Complainant explains that he called the local EEO Counselor on July 5, 2017, to
schedule an initial interview on July 6, 2017. However, Complainant argues that the EEO office
did not respond to his request, and the EEO office stated that it could not counsel him because he
was a temporary employee. Complaint includes a copy of his work calendar which indicates that
he had an “11:00 am EEO meeting request” on July 6, 2017.

Complainant further argues that his representative emailed the Joint Intake Center (“JIC”) on
July 21, 2017, as instructed by the Agency’s Directive Number 5173-011, which was within the
45-day limitation period.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact.
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 personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” 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.

EEOC regulations provide that the Agency or the Commission shall extend the time limits 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 occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2).

The EEO Counselor’s report reflects that Complainant initiated EEO contact on November 21,
2017, which is more than 45 days after the alleged discriminatory event at issue. The record also
indicates that Complainant emailed the Alternative Dispute Resolution Program Coordinator
(“ADRPC”) on July 5, 2017 with the following request:

I would like to schedule an appointment with you tomorrow morning, if possible,
so I can get your feedback on my current situation (emphasis added).
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We also note that a copy of Complainant’s work calendar indicates that he had an EEO meeting
scheduled on July 6, 2017. However, we do not find that Complainant exhibited, though his
correspondence with the ADRPC, the intent to pursue an EEO complaint at that time. It is well
settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an
agency official logically connected with the EEO process and by exhibiting an intent to begin the
EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989). The record further indicates that the ADRPC stated that “she [did] not recall meeting
with [Complainant] at any time,” and she had no record reflecting the alleged meeting. The
ADRPC further stated that her “office has very detailed and specific requirements for reporting
contacts and [she] would have properly annotated any contact” (emphasis in original).

Additionally, Complainant’s argument that he timely initiated EEO Counselor contact when his
representative emailed the JIC on July 21, 2017, is also unpersuasive. In the email to the JIC,
Complainant’s representative stated:

Pursuant to CBP Directive No. 51713011, my client is alleging a violation of Title
VII of the Civil Rights Act, Age Discrimination in Employment Act of 1967.
Since July 1, 2017, [Complainant] has been denied reassignments to the
Miami/Tampa Field Office at his current pay grade . . .

We note that the Directive No. 51713011 is an anti-discriminatory harassment directive and
Complainant does not appear to allege discriminatory harassment in his formal complaint.
Nevertheless, the Agency Directive specifically states, in Section 8 - “EEO Complaint/Union
Negotiated Grievance Procedures,” that

[r]eports made pursuant to this policy do NOT replace, substitute, or otherwise
satisfy the separate regulatory requirement to seek informal EEO counseling
within 45 calendar . . . if an individual wishes to pursue a claim of discrimination
under the applicable federal laws (emphasis in original).

The Agency Directive further states in Section 11 – “Equal Employment Opportunity (EEO)
Complainant Process,” that:

Any employee, applicant for employment, or former employee who believes he or
she has been discriminated against because of race, color, religion, sex, sexual
orientation, national origin, age, physical or mental disability, status as a parent,
genetic information, or retaliation for prior EEO involvement, and wishes to file
an EEO complaint, must seek informal EEO counseling within 45 calendar days
of the alleged discriminatory act by contacting the Office of Diversity and Civil
Rights EEO Complaint Intake Hotline . . . or the CBP EEO Complainant Filing
mailbox . . .

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Therefore, the record supports that Complainant did not initiate EEO Counselor contact within
the 45-day limitation period. The record further indicates that Complainant completed basic
EEO Awareness Training and EEO Awareness Training for Supervisors and Managers in 2016.
Additionally, the record supports that Complainant completed “No Fear Act” trainings in 2007,
2010, 2011, 2015, and 2017. Thus, Complainant had constructive knowledge of the EEO
complainant process, including the 45-day limitation period.

The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO
Counselor contact 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).

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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

November 19, 2018
Date