[Redacted], Vance C., 1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020005341 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vance C.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020005341 Agency No. HS-FEMA-00336-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 6, 2020, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the relevant time, Complainant was a former employee of the Agency.2 On November 13, 2019, Complainant initiated EEO Counselor contact. On January 9, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on age. In its July 6, 2020 final decision, the Agency determined that the formal complaint was comprised of the following claims: 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 The record reflects that effective April 30, 2013, Complainant’s appointment as a Disaster Assistance Employee was terminated. Disaster Assistant Employee (DAE) positions are temporary positions in which DAEs are deployed to specific disasters and emergencies on an intermittent basis. 2020005341 2 1. On or around April 2013, [the Agency] failed to send Complainant an Expiration of Appointment letter informing Complainant that his program was ending. 2. On May 30, 2019, Human Resources followed up on Complainant’s inquiry from January 2019, and informed Complainant that he did not meet the minimum qualifications for the Reservist, Planning Specialist position. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory events occurred in April 2013 and on May 30, 2019, outside of the applicable time period. The Agency further found that Complainant did not provide adequate justification for extending the time limit. The instant appeal followed. Regarding claim (1), Complainant asserts that he did not receive the Notification of Personnel Action form regarding his April 2013 termination of his appointment. In addition, Complainant asserts he did not know that he was terminated from his Disaster Assistance Employee until going through EEO counseling in 2020. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that employees received a memorandum in 2012 indicating that the Agency was making a transition of DAE positions to the Reservist Program, and that DAE employees would need to apply for the Reservist program. The Agency asserts that Complainant did not apply for the Reservist program and an SF-50 was issued terminating his appointment effective April 30, 2013. Finally, the Agency stated “it is simply not believable that [Complainant] was still of the belief that he was employed by the Agency after not having been called to deploy for six years…” 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 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 2020005341 3 The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Regarding claim (2), Complainant not being found qualified for the Reservist, Planning Specialist position, the record contains an email from the Agency (Branch Chief/Cadre Coordinator) to Complainant dated May 30, 2019. Therein, the Cadre Coordinator informed Complainant that Human Resources did not find Complainant qualified for the position at issue. As such, Complainant should have reasonably suspected discrimination regarding human resources’ determination on May 30, 2019. However, Complainant did not initiate EEO contact until November 13, 2019, outside of the applicable time period. Complainant has not presented adequate justification for extending the applicable time limit. Regarding claim (1), Complainant’s appointment as a Disaster Assistance Employee, the record contains a copy of a Notification of Personnel form (SF-50) reflecting that Complainant’s appointment was terminated effective April 30, 2013. Complainant asserts that he did not receive this SF-50 and did not know his appointment was terminated until EEO Counseling in 2020. We are, however, not persuaded by this assertion and find that the doctrine of laches applies to this matter. We conur with the Agency that Complainant should have suspected a change in his employment status after not being contacted for deployment for six years and/or not receiving anything from the Agency, in writing, indicating that his employment status was still active (such as an SF-50 extending his reappointment) during this time. 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. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 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. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). 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. In the instant matter, Complainant did not initiate EEO contact until over six years from the alleged discriminatory event. Based on the foregoing, we find that the doctrine of laches applies. We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact. 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. 2020005341 4 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. 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. 2020005341 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 January 13, 2021 Date