0120181390
08-07-2018
Kip D,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kip D,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.
Appeal No. 0120181390
Agency No. 2018HRD005
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 9, 2018, (Dismissal) 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 worked as a General Engineer, GS-0801-13, at the Agency's Facilities Services Directorate facility in Washington, DC. On January 2, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic2) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On August 23, 2017, Complainant learned he had not been selected for the position of General Engineer GS-0801-14, under vacancy announcement #ST- 10034161-17-HJ.
The Agency dismissed the claim for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that Complainant learned of his nonselection on or about August 23, 2017, but Complainant did not initiate contact with an EEO Counselor with an intent to pursue a complaint until November 9, 2017, which is beyond the forty-five (45) day limitation period.
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.
On appeal, Complainant argues that he did not develop reasonable suspicion of discrimination until September 26, 2017. Specifically, Complainant argues that on or about August 22, 2017, he received an automated response notifying him he was ineligible for the position because he had not submitted college transcripts to document his education. Complainant maintains that he emailed the Agency's Job Application Assistance (JAA) mailbox to seek clarification, believing that transcripts were unnecessary in his case, and received anonymous, unsigned email responses on August 25 and 28, 2017 reiterating that he was ineligible because his application had not included transcripts. Complainant then contacted the Agency Ombudsman and it was not until September 26, 2017 that Complainant received an email from a named individual who once again explained that Complainant's application was deemed ineligible because he had not included transcripts in his application. It was not until he received this response, Complainant argues, that he developed reasonable suspicion of discrimination. Complainant argues that his November 9, 2017 Counselor contact was therefore timely.
Following a review of the record we find Complainant's arguments to be unpersuasive. We note that the Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). As such, Complainant's efforts to resolve the matter by contacting first the JAA and then the Ombudsman did not toll the 45-day clock. Complainant's argument that he did not develop reasonable suspicion until after receiving a response from the Ombudsman is similarly unpersuasive as, aside from the fact that it was signed by an identifiable individual, Complainant has not shown how the September 26 email from the Ombudsman provided him with any information regarding discrimination or reprisal. We note in this regard that the September 26 email merely repeated the information provided by prior emails that notified Complainant his application was deemed ineligible because it lacked transcripts.
Complainant argues that the Agency engaged in separate acts of discrimination each time he received a notification telling him his application had been deemed ineligible. We disagree. The only harm incurred by Complainant in receiving each email was the harm of being denied the position of General Engineer, GS-14, which is addressed in the single claim #1. The receipt of subsequent emails repeating the same information do not create new claims of discrimination but merge with the original claim. We therefore find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Dismissal 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).
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
August 7, 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.
2 The Commission views Hispanic as denoting a National Origin, not a race. However we adopt the terminology used by Complainant.
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