0120180036
02-13-2018
Jospeh D,1 Complainant, v. Kristine L. Svinicki, Chairman, Nuclear Regulatory Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jospeh D,1
Complainant,
v.
Kristine L. Svinicki,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120180036
Agency No. NRC-17-10
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 14, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Retired Branch Chief at the Agency's National Security Branch, Division of Security Operations, Office of Nuclear Security and Incident Response.
On October 31, 2016, Complainant contacted the Agency's EEO Counselor alleging discrimination. When the matter was not resolved informally, on March 9, 2017, the Agency issued Complainant a notice of right to file a formal complaint. On March 24, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and age (over 40) when he was subjected to a hostile work environment. Complainant asserted that he had been held to a higher scrutiny resulting in a denial of career enhancing opportunities and work assignments that were offered to his peers. He also believed that he was constantly held accountable for prior Branch Chiefs' failures to complete tasks. He claimed that he retired two years early because he was unfairly held accountable for FY 2014 and FY2015 performance appraisals. In August 2015, he became aware that two Branch Chiefs were promoted and a third was accepted into the Senior Executive Service Candidate Development Program.
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant retired on December 31, 2015. He contacted the EEO Counselor on October 31, 2016, ten months later. The Agency indicated that the last incident occurred on December 31, 2015, while his contact occurred on October 31, 2016, well beyond the 45-day time limit. The Agency stated that Complainant was aware of the 45-day time limit and provided no reason to extend the time limit. As such, the Agency dismissed the complaint at hand.
This appeal followed. Complainant indicated that he retired two years earlier than planned due to the disparate treatment. He acknowledged that he was aware of the situation at the time he retired but it was only confirmed by management months later. Complainant asserted that he was surprised that he was permitted to go through the informal process if the Agency was going to dismiss the matter. He requested that the Commission reverse the Agency's decision. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2), that prior to request for a hearing in a case, 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 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.
Complainant stated that he retired effective December 31, 2015, due to the harassment and disparate treatment. He indicated that he learned additional information which confirmed his belief. At that point, he decided to pursue his claim of discrimination.
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. Here, Complainant clearly stated that he was aware of the alleged discrimination when he retired in December 2015. He waited until he obtained additional information and approximately 10 months to pursue his EEO complaint. Therefore, upon review, we find that the Agency's dismissal of the complaint for untimely was appropriate.
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 (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).
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
February 13, 2018
__________________
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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