Justin P.,1 Complainant,v.Jim Bridenstine, Administrator, National Aeronautics and Space Administration, Agency.Download PDFEqual Employment Opportunity CommissionDec 12, 20180120180812 (E.E.O.C. Dec. 12, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justin P.,1 Complainant, v. Jim Bridenstine, Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 0120180812 Agency No. NCN-17-HQ-00075 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 30, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 was a former employee of the Agency. On August 29, 2017, Complainant initiated EEO Counselor contact regarding alleged discrimination by the Agency. On October 27, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, sex, disability, age, and in reprisal for prior protected EEO activity when: 1. The Agency did not restore his service time between April 2, 1988 to February 26, 1989, to cover his employment at the Goddard Space Flight Center (GSFS) under the Student Trainee (Procurement) Program. 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. 0120180812 2 2. Complainant was subjected to continuing incidents of harassment between 1987 to 1998 by the Agency and other Federal Agency officials. The Agency dismissed claims (1) and (2) for untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2). The Agency noted a review of the EEO Counselor’s report and Complainant’s formal complaint shows that the alleged loss of service time (1988 – 1989) and harassment (1987 – 1998) occurred more than 28 and 19 years ago, respectively, both of which are well beyond the 45-day regulatory time frame for contacting an EEO Counselor. The Agency noted Complainant has filed multiple EEO complaints in the past which indicate he was aware of the applicable time limits. The Agency noted Complainant failed to provide justifiable reason to extend the filing requirement. The Agency also noted Complainant checked the “Class Complaint” box on the formal complaint form. The Agency advised if Complainant wished to pursue a class complaint, he must contact the Headquarters EEO Director, for a class counselor within 15 calendar days of his receipt of the Agency’s letter. Complainant was informed that failure to timely contact an EEO Counselor regarding this matter may be grounds for dismissal of the class claim. Complainant appealed the Agency’s decision to the Commission. In response to Complainant’s appeal, the Agency argues that it properly dismissed Complainant’s complaint on the grounds that he failed to timely initiate EEO Counselor contact. Additionally, the Agency claims that there are two alternative grounds by which it could have dismissed his complaint. The Agency argues Complainant’s formal complaint was untimely filed. Also, the Agency argues the complaint could have been dismissed for raising the same claim that is pending before or has been decided by the Commission or Agency. ANALYSIS AND FINDINGS 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 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. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 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. We note that on appeal, Complainant does not challenge the Agency’s definition of the claims raised in his complaint. Additionally, we note Complainant does not claim that he wished to file a class complaint. 0120180812 3 The Commission determines that the last discriminatory event occurred in 1998, but that Complainant did not contact an EEO Counselor until August 29, 2017, which is well beyond the 45-day limitation period. The Commission has consistently held that complainants must act with due diligence in pursuit of their claims and the failure to do so may result in dismissal of the claims by the doctrine of laches. See O’Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Complainant’s failure to contact an EEO Counselor until approximately 19 years after the alleged discriminatory event shows that he did not act with due diligence. CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint 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). 0120180812 4 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 December 12, 2018 Date Copy with citationCopy as parenthetical citation