Walter W.,1 Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jan 8, 2016

0120142971 (E.E.O.C. Jan. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Walter W.,1
Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120142971

Agency No. GSA-14-R2-C-0007

DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August 6,
2014, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

On February 14, 2014, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race (Caucasian), age (58), and in reprisal for
prior protected EEO activity when:

Complainant was determined to be ineligible for the position of Lead Small Business
Specialist GS-13 under Vacancy Announcement Number 1302098PRMP.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The Agency noted that Complainant received a notice of
ineligibility via electronic mail from the Human Resources Office on September 3, 2013. The
Agency stated Complainant did not contact the EEO Office until November 12, 2013, which
was beyond the applicable limitation period. Additionally, the Agency dismissed
Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
The Agency stated that to assert a claim of nonselection discrimination, the prima facie case

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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requires that the Complainant be considered at a minimum qualified for the position but not
selected for alleged discriminatory reasons. The Agency noted that the record indicated that
Complainant was ineligible for the position in question and his application was not referred for
consideration.

On appeal, Complainant states that he received initial notification that he was not offered the
position at issue via private electronic mail account that he rarely used anymore. Complainant
stated that he expected the Agency to notify him on his official Agency electronic mail account
or with a written hard copy via regular mail.

In response to Complainant’s appeal, the Agency reiterated its position that Complainant’s
complaint should be dismissed. The Agency stated that on September 3, 2013, Complainant
received an electronic mail message informing him that he was not eligible for vacancy
announcement 1302038PRMP, Lead Business Specialist GS-1101 BI-13, because he did not
have one-year of specialized experience. The Agency noted that Complainant alleged that the
electronic mail message was sent to a private electronic mail account rather than his Agency
account. However, the Agency noted that Complainant designated the private electronic mail
address on his application for the vacancy announcement. The Agency argues that
Complainant cannot claim ignorance of the applicable rules since he is familiar with the EEO
practices, procedures, and regulations as evidenced by his filing of four other cases.

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 the 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 her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

The record discloses that the alleged discriminatory event occurred on September 3, 2013,
when Complainant was notified via the electronic mail address he listed on his application that
he was ineligible for the position at issue, but that Complainant did not initiate contact with an
EEO Counselor until November 12, 2013, which is beyond the applicable 45-day limitation
period. Upon review, we find Complainant failed to present persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor contact.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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.
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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 8, 2016
Date