[Redacted], Peter L., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2021002293 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Peter L.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2021002293 Agency No. 51-2021-00263 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 1, 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 Complainant, a former Agency employee, was an applicant for Agency employment, and applied for the position of Chief, Management Division, ZP-0301-IV, Office of Facilities and Environmental Quality, Office of the Secretary, which was filled pursuant to the Agency’s direct-hire authority, by submitting his application material via email to the Management Program Analyst and selecting official on April 7 and 14, 2020. Between May 18 and 21, 2020, the selecting official interviewed six candidates who were deemed as the best qualified applicants for the position. Complainant was not one of the six candidates deemed best qualified. On June 6, 2020, Complainant contacted the Management Program Analyst to check the status of interview process for the position. On June 9, 2020, the Management Program Analyst responded to Complainant’s email that he had not been selected for the position and that the Agency decided to move forward with another candidate. 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. 2021002293 2 In July 2020, Complainant submitted Freedom of Information Act (FOIA) requests to the Office of Personnel Management (OPM) and the Agency regarding the matter. On October 13, 2020, Complainant received a response to his request from the Agency. On December 1, 2020, he received a response from OPM. On December 2, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. Complainant claimed that it was not until he received the Agency’s FOIA response on October 13, 2020, that he had become aware the Agency officials were deliberately retaliating against him for his prior EEO activity. Thereafter, on February 23, 2021, Complainant filed a formal complaint alleging the Agency unlawfully retaliated against him for his prior EEO activity when the Agency officials filled the position under a hiring authority for which he was not qualified and lied in response to questions about how the position was filled. In its March 1, 2021 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency found that Complainant did not initiate EEO Counselor until December 2, 2000, which it found to be well beyond the 45-day limitation period. The Agency further determined that Complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination on June 9, 2020, when he was made aware of his non- selection for the position. The record contains a copy of Complainant’s email dated December 2, 2020 to the Director, Client Services and Resolution Division. Therein, Complainant acknowledged that on June 9, 2020, he emailed the selecting official to find out the status of his application and she had the Management Program Analyst respond stating that they went with another applicant. Furthermore, Complainant stated asserted that “this was an illegal appointment” and that Agency officials were involved. Compainant, on appeal, argues that the emails from the Agency’s FOIA Analyst forwarded to him “show that I had no ‘reasonable suspicion’ that retaliation was taking place, as stated before I did not receive the FOIA response from OPM not until December 1st, 2020. It was brought to my attention by the EEO Counselor that the position was filled by 30% Disabled Veterans Appointing Authority on January 14th, 2021. The Hiring Official kept that away from me also.” The instant appeal followed. 2021002293 3 ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105(a)(1), in which in turn, requires that complaints of discrimination should be brought to the attention of the 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 the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 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 complaint reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Despite Complainant’s appellate contentions to the contrary, we determine that the alleged discriminatory event indeed occurred on June 9, 2020. However, Complainant did not initiate contact with an EEO Counselor until December 2, 2020, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initiate contact with an EEO Counselor. Moreover, we note that Complainant also failed to initiate EEO counseling contact within 45 days of when he received a response to his FOIA request concerning the selection process from the Agency. We determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency’s final decision dismissing Complainant’s formal complaint for the reason stated herein 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. 2021002293 4 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. 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. 2021002293 5 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