Anisa U.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity Commission

Nov 13, 2019

2019005663 (E.E.O.C. Nov. 13, 2019)

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

Anisa U.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.

Appeal No. 2019005663

Agency No. 57-2019-00313

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 21, 2019, dismissing her 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

During the period at issue, Complainant worked as a Research Chemist, ZP-1320-V/03, with the
Agency’s Special Programs Office, Laboratory Programs Division in Gaithersburg, Maryland.

On December 18, 1990, the Agency hired Complainant to a one-year appointment. On December
18, 1991, Complainant was rehired on a second one-year appointment. Complainant stated that
on July 30, 1991, her initial supervisor had told her that Agency management was reluctant to offer
her a career position because Complainant was “a woman of child-bearing age, and it would reflect
badly on the Agency if she didn’t advance at an appropriate rate.” On December 18, 1992, the
Agency re-appointed Complainant to a two-year term. On October 2, 1994, the Agency converted
Complainant to a career-conditional appointment.

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 2019005663

On February 21, 2019, an Agency Human Resources ran a benefit estimate report and Complainant
learned that her first three term appointments, from December 17, 1989 through her career
conditional appointment, had not counted towards the time-in-service for credit towards the
Federal Employees Retirement System (FERS).

On July 2, 2019, Complainant initiated EEO Counselor contact regarding the matter that her career
conditional appointment had not counted toward time-in-service for federal retirement purposes.
On August 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination based on sex (female).

On August 21, 2019, the Agency issued the final decision. The Agency dismissed the formal
complaint for failure to contact an EEO Counselor in a timely matter. The Agency asserted that
Complainant’s EEO Counselor contact on July 2, 2019, was untimely because Complainant had
asserted that her time spent as a term employee will not be included in her time in service, that she
will therefore suffer a financial loss, and that this action is due to the Agency refusal to hire her in
1991 to a career position due to her sex. The Agency concluded that the act of non-hire to a career
position in 1991 was the alleged discriminatory matter, and that the EEO counseling was well past
the limitation period for initiating timely contact.

The Agency further determined that if it were to take a far more expansive interpretation of the
alleged discriminatory act (the FERS Benefit Estimate Report of February 2019), Complainant’s
initial EEO contact on July 2, 2019, was still more than 45 days after Complainant became aware
of the allegedly discriminatory matter on February 21, 2019, upon notice that her FERS benefits
were based on her October 1994 conditional appointment date as opposed when the Agency had
first hired her to a limited term on December 1989.

The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination must be
brought to the attention of the 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. This Commission has adopted a “reasonable suspicion” standard (as opposed to a
“supportive facts” standard) to determine when the 45-day limitation period is triggered. 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.

The record discloses that the alleged discriminatory event occurred in 1991 as delineated above.
Complainant failed to initiate contact with an EEO Counselor until July 2, 2019, which was beyond
the forty-five day-limitation period. Moreover, Complainant’s initial EEO counseling contact on
this matter on July 2, 2019, was still more than 45 days from the February 21, 2019 FERS benefits
report she received that indicated her retirement benefits started accruing in 1994 rather than 1989.
3 2019005663

The Commission has consistently held that a complainant must act with due diligence in the pursuit
of a claim or the doctrine of laches may apply. See O'Dell v. Department of Health and Human
Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently her course of action could
bar her claim. We are unpersuaded by Complainant’s argument on appeal that she did not know
the matter was “reportable” until after she received No Fear Act training on June 11, 2019.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's 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.
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.
4 2019005663

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

November 13, 2019
Date