0120180389
02-22-2018
Wade H,1 Complainant, v. Michael R. Pompeo, Director, Central Intelligence Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wade H,1
Complainant,
v.
Michael R. Pompeo,
Director,
Central Intelligence Agency,
Agency.
Appeal No. 0120180389
Agency No. 17-24
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 24, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an employee at the Agency's facility. On June 27, 2017, Complainant contacted the EEO Counselor alleging discrimination. Complainant alleged the following events before the EEO Counselor:
1. He was subjected to harassment on the basis of race (African-American) from October 2016 to June 2017;
i. On July 20, 2016, the Supervisor did not update Complainant's official Agency training record to include Complainant's previously completed external training courses;
ii. In October 2016, Complainant learned that the Supervisor did not recommend Complainant for promotion to the GS-14 level;
iii. In October 2016, the Supervisor provided Complainant with insufficient panel feedback following the decision not to promote him to the GS-14 level;
iv. In June 2017, the Supervisor did not approve Complainant's re-certification request.
2. On the basis of race, on July 20, 2016, the Supervisor did not update Complainant's official Agency training record to include Complainant's previously completed external training courses.
3. On the basis of race, in October 2016, Complainant learned that the Supervisor did not recommend Complainant for promotion to the GS-14 level.
4. On the basis of race, in October 2016, the Supervisor provided Complainant with insufficient panel feedback following the decision not to promote him to the GS-14 level.
5. On the basis of race, in June 2017, the Supervisor did not approve Complainant's re-certification request.
When the matter could not be resolved informally, he was issued a Notice of Right to File a formal complaint. On September 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) and listed issues (1), (2) and (3) from the list above. Complainant abandoned events (4) and (5). Further, the corrective action requested by Complainant involved only the issues alleged in events (2) and (3).
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant specifically did not allege events (4) and (5). Complainant also alleged events (4) and (5) in (1)(iii) and (1)(iv). Based on the Complainant's withdrawal of events (4) and (5), the Agency determined that (1)(iii) and (1)(iv) were also withdrawn. The Agency noted that events raised in (1), (2) and (3) occurred in July 20, 2016 and October 2016. Complainant contacted the EEO Counselor in June 2017, well beyond the 45-day time limit. As such, the Agency dismissed events (2) and (3). As to event (1), Complainant alleged that he was subjected to harassment. The Agency noted that Complainant withdrew (1)(iii) and (1)(iv). As such, Complainant failed to raise an event within 45-calendar days of his EEO Counselor contact in order to consider his claim of harassment timely. Therefore, the Agency dismissed the complaint as a whole.
This appeal followed. Complainant believed he raised his complaint in a timely manner. He asserted that he became aware during counseling from an email from an Agency organization that African-American employees were not receiving credit on their training transcript. He felt that this was a pattern of discrimination. He also indicated that he believed that the Supervisor denied him the promotion based on his race. We note that Complainant did not include events (1)(iii), (1)(iv), (4) and (5) on appeal. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that Complainant failed to timely allege events (2) and (3). The specific events raised occurred outside of the 45-day time limit. As to event (2), Complainant asserted he did not become aware of the discrimination until he received an email from an Agency organization. However, 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 (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. We find that Complainant has not provided sufficient justification for extending the time limit for contacting an EEO Counselor.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. As such, with respect to event (1), Complainant needed to have raised one act which was not time barred. Upon review, we find that Complainant failed to do so. As such, we find that the Agency's dismissal of event (1) was appropriate.
CONCLUSION
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO contact 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.
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
February 22, 2018
__________________
Date
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.
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