[Redacted], Caitlyn H., 1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020004676 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caitlyn H.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency. Appeal No. 2020004676 Agency No. 54-2020-00639 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 29, 2020, dismissing a formal 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 During the period at issue, Complainant was an applicant for the Agency’s Supervisory Meteorologist, GS-1340-13, position located in Farmington, Minnesota. On June 4, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 12, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on sex and in reprisal for prior protected EEO activity when she was not selected for the Supervisor Meteorologist, GS-1340-13 (MAP), position at the Central Weather Service Unit, National Weather Service, which was advertised pursuant to Vacancy Announcement Number NWS-CR-2020-0010 and was open for applications from January 22 to February 5, 2020. 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. 2020004676 2 In its final decision dated July 29, 2020, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant was notified on March 27, 2020, but did not initiate EEO counseling until June 4, 2020, which the Agency found well beyond the 45-day limitation period. The instant appeal followed. 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 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. The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Complainant acknowledges in her formal complaint that she was notified by the Agency on March 27, 2020, that she not selected, and she would not receive further consideration for the subject position. Consequently, the 45-day limitation period began once Complainant was notified that her non-selection was final, and Complainant had 45-days, or until May 11, 2020, to timely initiate contact with an EEO Counselor. Complainant explained, however, in her formal complaint that she filed a complaint with the Office of Special Counsel (OSC) on March 28, 2020. Complainant acknowledged that the OSC informed her as early as April 10, 2020, that “the general policy of OSC is not to take action on matters that are more appropriately resolved through the EEO process.” Complainant explained that she requested, on April 14, 2020, that the OSC reconsider her complaint and on April 24, 2020, the OSC sent Complainant a final letter electing not to pursue her complaint. Thereafter, Complainant explained that on May 25, 2020, she reviewed the instructions posted on the EEOC Public Portal and sent an email to info@eeoc.gov to request that an EEO Counselor contact her, but she did not receive a response. On June 4, 2020, Complainant conducted a Google search and found the phone number and contact information for the Agency’s EEO Counseling and initiated EEO Counselor contact the same day. Complainant does not explain in the record or on appeal why she waited almost an entire month to contact the EEOC on May 25, 2020, after the OSC informed her on April 24, 2020 that it would not pursue her formal complaint. Complainant very well could have initiated EEO Counselor contact by the May 11, 2020 deadline after the OSC notified her of its final decision. 2020004676 3 Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2). The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004676 4 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 22, 2021 Date