Justin P.,1 Complainant,v.Jim Bridenstine, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120180812 (E.E.O.C. Dec. 12, 2018)

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.
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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.

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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).
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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

December 12, 2018
Date