[Redacted], Porter H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Mar 10, 2022

Appeal No. 2020004318 (E.E.O.C. Mar. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Porter H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020004318 Agency No. DeCA-00002-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s (AJ’s) decision dated June 11, 2020, dismissing his 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND During the period at issue, Complainant worked as a Store Worker, WG-6914-04, for the Agency’s Scott Air Force Base Commissary at Scott Air Force Base, Illinois. On November 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (association: Black African-American spouse) when: 1. Shortly after September 2018, Complainant learned that the reason he was not selected for a Meat Cutting Worker position in November/December 2017 was due to the race of his spouse; and 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 2020004318 2. Complainant was subjected to racial slurs involving the use of the “n” word, which was condoned by two management officials. After the Agency conducted as investigation into his EEO complaint, Complainant requested a hearing before an EEOC AJ. On June 11, 2020, the AJ issued an Order of Dismissal, based on untimely EEO counselor contact. The AJ determined that Complainant initiated EEO counselor contact on September 25, 2018, beyond the 45-day limitation period required by 29 C.F.R. § 1614.105(a)(1) from when Complainant reasonably suspected discrimination in his non-selection and the incidents involving the use of the “n” word. The instant appeal followed. On appeal, Complainant argues that equitable tolling applies in the instant matter because the AJ did not have the benefit of Complainant’s supplemental affidavit at the time of the Order of Dismissal. Complainant contends that the Agency’s Motion to Dismiss should be considered a Motion for Summary Judgment, arguing that the Agency relied upon matters outside of and beyond Complainant’s formal complaint when determining that his EEO Counselor contact was untimely. In response, the Agency maintains that it presented evidence that Complainant did not initiate EEO Counselor contact in a timely manner, and Complainant did not offer any reasons for an equitable waiver. 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. Here, we find that the AJ properly dismissed the complaint for untimely EEO Counselor contact. The record discloses that the alleged discriminatory non-selection occurred on December 15, 2017, and the additional remarks occurred through approximately February 2018. On appeal, Complainant asserts that it was not until his consultation with his attorney that he realized that he was not selected because of his wife’s race. Complainant does not provide a date for this consultation. However, statements Complainant provided to the EEO Counselor and in his initial affidavit indicate that Complainant should have reasonably suspected discrimination in August 2018. Specifically, Complainant stated, “on August 1, 2018” and in “early August 2018” a coworker told him that he was not promoted because of his wife’s race. Report of Investigation (ROI) at 122; Complainant’s Appeal at Exhibit A, Page 2. Complainant alleges that it did not “sink in” until September 2018. However, he explicitly states that a coworker told him on August 1, 2018, that if he “got the job there would be a problem…due to my wife’s race”. Id. This suspicion was sufficient to trigger the 45-day timeframe for seeking EEO counseling. 3 2020004318 In accordance with Complainant’s own assertions, he had until September 15, 2018, to timely initiate contact with an EEO Counselor. Since September 15, 2018 was a Saturday, Complainant had until Monday, September 17, 2018 to initiate contact with an EEO Counselor. 29 C.F.R. § 1614.604(d). However, it is undisputed, that Complainant did not contact an EEO Counselor until September 25, 2018, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUSION 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. 4 2020004318 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. 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 March 10, 2022 Date