[Redacted], Scotty F., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Nov 30, 2021

Appeal No. 2021004759 (E.E.O.C. Nov. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scotty F.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021004759 Hearing No. 570-2021-00263X Agency No. DOI-OS-20-0378 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 22, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Building Manager, GS-14, at the Agency’s Office of Facilities and Administrative Services in Washington, D.C. On June 10, 2020, Complainant filed a formal complaint claiming that the Agency discriminated against him based on age when, on May 6, 2020, he became aware that he was not selected for the for the position of GS-15 Supervisory Building Management Specialist, under vacancy announcement number OFAS-20-MP-10726928JS, because management effectively rendered 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. 2021004759 2 him ineligible by ignoring his request to official document his employee personnel file with the year and a half he fulfilled the duties of a GS-14.2 After the Agency conducted as investigation into his EEO complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 5, 2021, the AJ issued a notice of proposed dismissal. After receiving responses from Complainant and the Agency, the AJ dismissed the formal complaint on June 30, 2021, for untimely EEO counselor contact. The AJ determined that Complainant initiated EEO counselor contact on May 11, 2020, which the AJ found beyond the 45-day limitation period required by 29 C.F.R. § 1614.105(a)(1) from when he was notified that he was not on the list of eligible candidates for the position at issue. On July 22, 2021, the Agency issued a final decision implementing the AJ’s dismissal. 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 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, the AJ properly dismissed the formal complaint for untimely EEO counselor contact. The record reflects that Complainant stated that he learned on March 23, 2020, that he was not included on the list of eligible candidates for the position at issue. However, it is undisputed that Complainant waited until May 11, 2020, five days beyond the 45-day limitation period, to initiate EEO Counselor contact. Complainant has not presented persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant’s argument that he did not reasonably suspect discrimination until after he was notified of his non-selection on May 6, 2020, is not persuasive. Complainant concedes that he knew as early as March 23, 2020, that he was not eligible for the position because his name was not included on the list of eligible candidates. 2 Complainant testified that he was notified on March 23, 2020, that he was not included on the list of eligible candidates for the GS-15 position and he learned on May 6, 2020, that another employee was selected. 2021004759 3 The record is clear that Complainant suspected discrimination at the time he was notified on March 23, 2020, because he repeatedly questioned management about not being included on the list of eligible candidates. Complainant reasonably suspected discrimination, even if he had not received notice that another person had been selected for the position, at the time he was informed that he was not an eligible candidate for the position on March 23, 2020. This suspicion was sufficient to trigger the 45-day timeframe for seeking EEO counseling. CONCLUSION The Agency's final order implementing the AJ's dismissal 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. 2021004759 4 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 November 30, 2021 Date