[Redacted], Otto D, 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2021002195 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otto D,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021002195 Agency No. ARLEWIS21NOV00221 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 26, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an IT Specialist at the Agency’s Joint Base Lewis-McChord in Washington. On November 20, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On January 9, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, disability, and in reprisal for prior protected EEO activity. By letter dated January 26, 2021, the Agency determined that the formal complaint was comprised of the following claim: On November 4, 2020, Complainant became 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and the Commission’s website. 2021002195 2 aware through a Freedom of Information Act (FOIA) that his job offer was rescinded on July 25, 2018, for IT Specialist in Fort Huachuca.2 The Agency dismissed the claim for untimely EEO Counselor contact. The Agency reasoned that Complainant was aware on July 26, 2018, of the alleged discrimination. However, the Agency found that he did not contact an EEO Counselor until November 20, 2020, outside of the applicable time limit. The instant appeal followed. On appeal, Complainant asserts that he did not receive the second FOIA response until November 4, 2020, and that is when he became aware of the reprisal. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that Complainant received an email from the Agency’s Human Resources rescinding the job offer in question on July 26, 2018. According to the Agency, the email indicated the offer was being withdrawn due to information obtained during the pre- employment process. The Agency states that Complainant’s FOIA request dated October 26, 2018, sets forth that Complainant contacted the selecting official who stated that something “came up” with Complainant’s references. Thus, the Agency asserts that Complainant reasonably suspected discrimination at the time of his initial FOIA request. The Agency asserts that Complainant did not receive any new information during subsequent FOIA responses which caused him to suspect discrimination within the 45 days prior to his initial EEO contact on November 20, 2020. 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 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 2 The record reflects that on January 22, 2021, the Agency initially accepted the claim for investigation. On January 22, 2021, the Agency also dismissed several other claims on procedural grounds. However, Complainant does not expressly contest the dismissal of these other claims on appeal. Thus, we decline to address them further herein. 2021002195 3 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency properly dismissed the formal complaint for untimely EEO Counselor contact. We further find that Complainant reasonably suspected discrimination at the time of his initial FOIA request on October 26, 2018.3 The record reflects that Complainant received an email from the Agency dated July 26, 2018, rescinding the job offer in question. The email provided that the offer was being withdrawn due to “information obtained during the pre-employment process.” The October 26, 2018 FOIA request provides, in pertinent part, that after Complainant received the July 26, 2018 email rescinding the job offer, he contacted the selecting official who indicated that “something came up in regards to his references….We believe this issue is due to apparent feedback from a reference/supervisor.” The record is devoid of evidence that Complainant received information from the Agency’s FOIA responses which resulted in him suspecting discrimination and/or retaliation. The record contains a copy of the EEO Counselor’s Report. Therein, the Report provides, in pertinent part, that “[o]n July 26, 2018, [Complainant] received an email withdrawing the offer due to a negative reference check. [Complainant] indicated that he initiated the FOIA process and the information he received was the same information he already had, so he appealed the findings and on November 4, 2020, he received the second findings which still did not produce any new information and therefore he decided to file an EEO complaint.” Based on the foregoing, we find that Complainant reasonably suspected discrimination and/or retaliation at the time of his initial FOIA request on October 26, 2018. Thus, his initial EEO contact on November 20, 2020 is outside of the applicable time limit. Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint. 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. 3 The record reflects that Complainant submitted a FOIA request through his union representative. 2021002195 4 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. 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. 2021002195 5 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 June 2, 2021 Date