0120161040
03-18-2016
Herbert M.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herbert M.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120161040
Agency No. FBI-2015-00198
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 10, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an Assistant Agent in Charge. Complainant had filed a prior EEO complaint. During the processing of the prior complaint, he believed that the Agency's attorney (Attorney) engaged in inappropriate activity with respect to witnesses. He believed that the Attorney's actions influenced the jury's verdict in July 2009. He contacted the Agency's Hotline regarding the Attorney's actions in September 2009. He lodged complaints with the Agency's Office of Inspector General. His request for an investigation was denied by letter dated May 2, 2012. Complainant filed a Freedom of Information Act in January 2014, seeking further information on the Attorney's actions as related to a co-worker's EEO complaint. He received the information in July 2015.
Following these actions, on July 7, 2015, Complainant contacted the EEO Counselor alleging discrimination. The matter could not be resolved informally. On September 5, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, shortly before his prior EEO complaint, in July 2009, Complainant learned that the Attorney contacted several witnesses in an attempt to discourage them from testifying in his prior EEO matter.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failing to raise the matter within the 45 day time limit. The Agency noted that Complainant was aware of the alleged discrimination in 2009. However, he waited until July 2015, in order to raise the claim with an EEO Counselor. As such, the Agency determined that Complainant's complaint should be dismissed pursuant to 29 C.F.R. �1614.107(a)(2).
Complainant appealed asserting that he had been pursuing his claims of improper conduct on the part of the Attorney with respect to his civil action which was decided by jury verdict on July 30, 2009. As early as September 2009, he had lodged complaints with the Agency regarding the Attorney's conduct. He pursued a claim with the Agency's OIG which was denied in 2012. He sought documents related to a co-worker's EEO complaint. As such, he filed a FOIA request to obtain additional support regarding his claims against the Attorney. He made the request in January 2014, however the Agency did not provide the documents until July 2015. Therefore, he claims that he became aware of the Attorney's actions in 2015, not 2009 as asserted by the Agency. As such, he requests that the Commission reverse the Agency's final decision. The Agency asked that the Commission affirm its dismissal of the complaint at hand.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states 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, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, Complainant clearly indicated that he was aware of the issue as early as 2009. We find that Complainant reasonably suspected he was the victim of unlawful retaliation, long before he sought counseling in July 2015, and that suspicion is what motivated him to file his FOIA request in January 2014, over a year before he initiate EEO counseling on the matter. 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 Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant waited long past reasonable suspicion to seek counseling--instead waiting until he had gathered evidence through the FOIA system to support his claim. Therefore, we agree that the complaint was properly dismissed, pursuant to 29 C.F.R. �1614.107(a)(2), for untimely EEO counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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).
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
March 18, 2016
__________________
Date
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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