U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cordell H.,1
Complainant,
v.
Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 2019002460
Agency No. HS10USCG021012018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated February 21, 2019, 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. For the reasons that follow, we AFFIRM the Agency’s
final decision that dismissed the complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information
Technology (IT) Specialist, GS 11 at the Agency’s United States Coast Guard Headquarters
facility in Washington, DC. On September 13, 2018, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of race (African-American)
and color (brown) when:
1. On April 5, 2018, he received a “Meets” on his annual performance evaluation;
2. In October 2017, he was reassigned to his current position;
3. In October 2015, he was reassigned because his current position was eliminated;
4. In April 2014, he was reassigned to the Base National Capital Region, Washington, D.C.
and was not reassigned to a GS-13 position;
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.
20190024602
5. In September 2013, the Recruiting Command moved to Ballston and he was relieved of all
of his duties and responsibilities as an IT Specialist;
6. From September 2012 - May 2013, he provided IT support for more than 400 users at the
Recruiting Command but did not receive acknowledgement for the effort;
7. In October 2006, he was reassigned to the Assistant Commandant for Prevention,
Standards Directorate Office of Operating and Environmental Standard as a GS-11
Program Specialist; and
8. Around August or September 2005, he was relieved of all of his duties and responsibilities
as an IT Specialist when the Marine Safety Center and Security Center relocated.
In its final decision, the Agency dismissed Complainant’s complaint. Specifically, the Agency
dismissed claim 1 because the claim had already been addressed in the Agency’s negotiated
grievance procedure. The Agency also dismissed claims 1 – 8 for untimely counselor contact, as
Complainant had contacted the EEO counselor more than 45 days after the most recent alleged
instance of discrimination. Complainant subsequently filed the instant appeal.
ANALYSIS AND FINDINGS
Claim 1
The Commission’s regulations provide that Agencies should dismiss formal EEO complaints that
raise the same matter previously raised in a negotiated grievance procedure that permits claims of
discrimination. 29 C.F.R. § 1614.107(a)(4). An agency employee covered by a collective
bargaining agreement who wishes to raise allegations of discrimination may do so under the
negotiated grievance procedure or the EEO procedure, but not both. 29 C.F.R. § 1614.301(a).
Thus, if a Complainant elects to raise allegations of discrimination through the grievance
procedure and subsequently raise the same allegations in an EEO complaint, the Agency will
dismiss the complaint. Cary J. v. Dep’t of Labor, EEOC Appeal No. 0120182131 (Mar. 8. 2019).
The Agency need not inform the individual of the need to elect either the grievance or the EEO
procedure. Id. The record indicates that Complainant filed a grievance concerning claim 1 on
April 27, 2018. The Grievance Official resolved the matter by changing Complainant’s evaluation
from a rating of “Meets,” to a rating of “Exceeds.”
The record indicates that Complainant was a union member covered by a collective bargaining
agreement that permitted employees to raise allegations of discrimination under EEO procedures
or the negotiated grievance procedure, but not both. Complainant elected to pursue claim 1 through
the negotiated grievance process rather than the EEO complaint process. Thus, the Agency
properly dismissed claim 1.
Accordingly, we AFFIRM the Agency’s dismissal of claim 1.
20190024603
Claims 2 - 92
The Commission regulations provide that a complainant must contact an EEO counselor within
forty-five (45) days of the most recent alleged discriminatory event or, in the case of a personnel
action, when the action became effective. 29 C.F.R. § 1614.105(a)(1). The 45-day limitation period
for contacting an EEO counselor begins when an individual reasonably suspects discrimination,
not when all the facts that support a discrimination claim are apparent. Mitchell K. v. Dep’t of the
Navy, EEOC Appeal No. 2019002360 (Apr. 30, 2019). The Commission rarely extends the
limitation period unless the complainant can provide adequate justification for the extension.
George H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019000613 (Feb. 27, 2019).
Participation in a grievance procedure does not toll or extend the time limit for contacting an EEO
counselor. Mitchell K., EEOC Appeal No. 2019002360, supra.
With respect to claims 2 - 9, we find that claim 2, the most recent alleged discriminatory act,
became effective on an unspecified date in October 2017. However, Complainant did not contact
the EEO counselor until June 11, 2018, at least 223 days beyond the 45-day limitation period.
Immediately after discussing the reassignment, Complainant mentioned that the contractors he
worked with in 2005 are now government employees at the GS-13 level, whereas he remained at
the GS-11 level. We find this to be persuasive evidence that he should have reasonably suspected
discrimination upon his reassignment given his allegations of discrimination going back to 2005.
We find that Complainant has not provided an adequate justification for tolling the 45-day time
limitation period for claims 2 – 9.
CONCLUSION
Accordingly, we affirm the Agency’s dismissal of Complainant’s complaint for untimely
counselor contact (claims 2 - 9) and for raising a claim previously addressed in a negotiated
grievance procedure (claim 1).
2 Because we have determined above that claim 1 was appropriately dismissed, pursuant to 29
C.F.R. § 1614.107(a)(4), we do not find it necessary to address whether or not Complainant sought
EEO counseling in a timely manner regarding claim1.
20190024604
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.
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.
20190024605
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
June 28, 2019
Date
