[Redacted], Hassan B., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000255 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hassan B.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021000255 Agency No. 5N1L2000884 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 9, 2020, dismissing his complaint of unlawful employment discrimination alleging a 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 Supervisory Police Officer at the Agency’s 87th Security Forces Squadron in Joint Base McGuire-Dix-Lakehurst, New Jersey. On September 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the bases of national origin (Italian ancestry) and reprisal when: a. On or about July 15 to August 2018, the Commander referred to Complainant as being part of “Monmouth Mafia.” b. On or about March 6, 2017, the Commander used the term “Monmouth Mafia” to senior level military and civilian managers of the 87th Security Forces Squadron, 87th Mission 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. 2021000255 2 Support Group, 87th Air Base Wing Legal Office, and the 87th Force Support Squadron Civilian Personnel Office, knowing that the term referred to the aggrieved, and after he had previously been advised that the use of the term was derogatory and offensive to the aggrieved based on his Italian ancestry. c. On or about March 6, 2017, to August 2018, Colonel TK, Commander 87th Support Mission Support Squadron, failed to prevent, investigate, or act upon information or personal knowledge regarding the term “Monmouth Mafia” being used by KD. Complainant also alleged he was subjected to reprisal for prior EEO activity when: d. On or about July 22, 2018, the Commander reassigned Complainant from the position of Supervisory Detective, GS-12, (Chief of S2 Investigations) to the position of Supervisory Police Officer, GS-12, (Assistant Operations Officer, S3). The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact as well as for failure to state a claim. 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 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. The record discloses that the latest alleged discriminatory event occurred on July 22, 2018, but Complainant did not initiate contact with an EEO Counselor until August 7, 2020, which is well beyond the forty-five (45) day limitation period. On appeal, Complainant states that he obtained knowledge of the facts supporting his claims of discrimination on July 9, 2020, after being deposed in another case being litigated at the EEOC. The record contains his deposition regarding these events. Complainant states he was aware that the term “Monmouth Mafia” was used by the Commander as early as the summer of 2015. The Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990). 2021000255 3 The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Complainant waited 2 years from the date of the last alleged discriminatory event before he contacted an EEO Counselor in July 2020. Complainant has failed to provide sufficient justification for extending or tolling the time limit. Because we find that Complainant untimely contacted an EEO counselor, we need not address whether the complaint states a claim. Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 2021000255 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 February 2, 2021 Date