[Redacted], Cedric K, 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, (Washington Headquarters Services) Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2021003101 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cedric K,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, (Washington Headquarters Services) Agency. Appeal No. 2021003101 Agency No. 2021-WHSPFPA-014 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 30, 2021, dismissing a formal complaint alleging 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 worked as a Special Agent/Criminal Investigator, Grade GS-13, at the Agency’s Protective Services Division in the Pentagon Force Protection Agency in Defense Pentagon, District of Columbia. On January 8, 2021, Complainant initiated EEO Counselor. The Agency and Complainant did not resolve the matter through informal EEO counseling. On March 10, 2021, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency subjected him to discrimination based on race (Caucasian), sex (male), and color (white) when, on November 17, 2020, Complainant became aware he was not selected for the 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 2021003101 position of Supervisory Criminal Investigator, Grade GS-14, under vacancy announcement number ST-10757939-20-MG. On March 30, 2021, the Agency dismissed Complainant’s formal complaint for untimely EEO counselor contact under 29 C.F.R. 1614.107(a)(2). The instant appeal followed. On appeal, Complainant argues that his EEO counselor contact was timely because he did not learn that one of the selectees was an African-American female until on December 18, 2020. Complainant further stated that he had difficulty reaching the EEO Counselor via telephone because of the COVID19 pandemic. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that claims of discrimination should be brought to the attention of an EEO 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 that action. 29 C.F.R. 1614.107(a)(2) mandates that a discrimination complaint that fails to comply with the applicable time limits shall be dismissed. Based on a careful analysis of the record, we find the Agency properly dismissed the present complaint. The record shows that, after interviewing Complainant and four other eligible applicants, the Agency had ultimately decided to promote the two candidates, other than Complainant. The Agency asserts the selectees (Caucasian male and African American female) had both received the highest scores from the interview panel. Complainant was notified on November 17, 2020, that he had not been selected for the supervisory GS-14 position for which he applied. Complainant did not initiate contact with an EEO Counselor until January 8, 2021, which was more than 45-days from his notice of non-selection. This Commission has consistently applied “reasonable suspicion” standard (as opposed to a “supportive facts" standard) to determine when the 45-day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Complainant argues that he did not suspect reasonably suspect discrimination until December 18, 2020, when he learned that one of the selectees was an African American female. We are not persuaded. We have previously held that, in most cases, a non-selection notice date is the reasonable date to suspect discrimination. Griffin v. Sel. Svc. Sys., EEOC Appeal No. 01952978 (Jun. 18, 1996) citing Bracken v. U. S. Postal Serv., EEOC Request No. 05900065 (Mar. 29, 1990). We find nothing in the circumstances presented by this case to deviate from this general rule. We are, moreover, unpersuaded by Complainant’s assertion that the delay was in part attributable to difficulties in contacting an EEO counselor during the Covid 19 pandemic. Beyond his bare assertions, there is no evidence to support this claim. 3 2021003101 CONCLUSION The Agency’s final decision dismissing the instant formal complaint for 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. 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. 4 2021003101 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 September 9, 2021 Date