Stan H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jan 23, 2020

2020000462 (E.E.O.C. Jan. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020000462 Agency No. DLAR-18-0072 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 19, 2019, dismissing a formal 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., and 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 Quality Assurance Specialist, GS-1910-11, at the Agency’s Defense Logistics Agency-Aviation facility in Richmond, Virginia. On January 16, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 29, 2018, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination based on race, national origin, sex, color, and age when: 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 2020000462 1. On August 10, 2016, Complainant was informed that he was not selected for the position of Lead Customer Account Specialist, GS-0301-12, advertised under Job Opportunity Announcement (JOA) DLAA vn-16-1722961; 2. Around May 2017, Complainant was informed that he was not selected for the position of Lead Customer Account Specialist, GS-0301-12, advertised under JOA DLAAvn-17-1875412; 3. On September 26, 2017, and Agency official made a statement during a meeting regarding Complainant’s non-selections that, “duck like ducks.” Complainant further alleges that the Agency official explained further that “they want people that look like them,” and “you would probably have a better chance if you went up North;” 4. On October 19, 2017, the selecting official for the position of Customer Logistics Site Specialist (Marine Cell), GS-0301-12, Job Opportunity Announcement DLAAvn-172008014, allegedly coerced a panel member into telling a story during Complainant’s interview about how the selecting official can “cross no lines.” Complainant interpreted the comment as the selecting official’s way of hinting that he “could do what he wants to do,” regarding his selections; 5. On November 16, 2017 Complainant was informed that he was not selected for the position of Lead Customer Account Specialist, GS-0301-12, advertised under Job Opportunity Announcement DLAAvn-172008014; and 6. On November 28, 2017, Complainant was informed that he was not selected for the position of Customer Logistics Site Specialist (Marine Cell), GS-0301-12, advertised under Job Opportunity Announcement DLAAvn-17-2008014. In its final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency found that Complainant’s initial EEO counselor contact on January 16, 2018, regarding events occurring between August 2016 and November 2017, was beyond the time limitations established by EEOC regulations. This 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 a personnel action, within forty-five (45) days of the effective date of the action. 3 2020000462 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. Department of the Navy, EEOC Request No. 05970852 (February 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. The most recent alleged discriminatory event occurred on November 28, 2017, but Complainant did not initiate contact with an EEO Counselor until January 16, 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 The Agency's final decision dismissing the formal complaint for the reason discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 4 2020000462 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 January 23, 2020 Date