[Redacted], Ariel L., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2022003380 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ariel L.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022003380 Agency No. DON-22-68733-00634 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 9, 2022, dismissing his complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant was formerly employed as a Program Analyst at the Agency’s facility in Kings Bay Naval Base, Georgia. On March 29, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when: 1. On 11 April 2014, the Reasonable Accommodation (RA) Advisory Committee identified performance elements that did not exist in the essential functions of his position; 2. On 14 April 2015, he was not reassigned through the RA process to a position for which he was qualified; and 3. On 14 April 2015, the Agency advised him that he did not qualify for a position for which he felt he did qualify. 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. 2022003380 2 The Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). According to the Agency, Complainant waited until February 2, 2022,2 to contact and EEO Counselor, more than 45 days after the latest allegedly discriminatory action. The Agency noted that when asked, Complainant provided no explanation for the delay. Further, the Agency noted that Complainant had been provided information regarding complaint timelines during new employee orientation and completed mandatory EEO training which outlines the required timelines. Complainant filed the instant appeal. 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 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 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. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that they was not notified of the time limits and were not otherwise aware of them, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence they were prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record discloses that the most recent allegedly discriminatory event occurred on April 14, 2015, years before Complainant’s contact in February 2022. In both his formal complaint and on appeal, Complainant disputes the timeliness of a previous filed complaint, DON 15-68733- 03625; EEOC Appeal No. 0120181153; EEOC Request No. 0520180420. However, we do not find this information to be applicable in the instant case. We find that Complainant has not presented sufficient reason to extend or toll the time limit for initiating EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2 We note that the Counselor’s Report states that initial contact occurred on February 10, 2022. 2022003380 3 STATEMENT OF RIGHTS - ON APPEAL 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 October 26, 2022 Date