Harris K.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 18, 2019

2019002461 (E.E.O.C. Jun. 18, 2019)

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

Harris K.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019002461

Agency No. 5C1C1900161L19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated January 8, 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Computer Assistant,
GS-09, at the Agency’s 49th Wing, Holloman Air Force Base in New Mexico.

On December 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination and a hostile work environment on the bases of national origin (Hispanic)2,
color (Brown), and age (59) when:

1. On November 20, 2017, his first-supervisor (S1) told him that he lacked in
credibility;

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 Although Complainant alleges that he was subjected to discrimination on the basis of his race,
the Commission considers the term “Hispanic” to be a national origin rather than a racial group.

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2. On March 2, 2018, S1 failed to coordinate his Client System Administration (CSA)
re-evaluation date that resulted in his CSA rights being revoked by his second-level
supervisor (S2);

3. On March 20, 2018, his third-level supervisor (S3) stated to him that he will
potentially lose save pay, take a grade reduction, and he should consider retiring;
and

4. On March 20, 2018, S3 told him that he is not qualified for any Information
Technology positions

On January 8, 2019, the Agency issued a final decision dismissing the formal complaint on the
grounds of untimely EEO Counselor contact. The Agency determined that Complainant contacted
an EEO Counselor on November 21, 2018, but that the last date of the alleged discriminatory
actions occurred on March 20, 2018, well beyond the 45-day limitation period for EEO Counselor
contact.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the alleged discrimination is “ongoing” and that he has
recently received a Notice of Removal.3

In response, the Agency maintains that Complainant’s complaint was properly dismissed as
untimely. The Agency specifically argues that Complainant has failed to demonstrate any reason
for equitable tolling or allege discriminatory acts that occurred between March 2018 and October
2018, therefore failing to demonstrate that the alleged discrimination is ongoing.

3 We note that for first time on appeal Complainant claims that he has been issued with a Notice
of Removal. This matter was not the subject of Complainant’s formal complaint. Complainant is
advised that if he wishes to pursue, through the EEO process, this additional claim raised for the
first time on appeal, he must initiate contact with an EEO Counselor within 15 days after he
receives this decision. The Commission advises the Agency that if Complainant seeks EEO
counseling regarding this new claim within the above 15-day period, the date Complainant filed
the appeal statement in which he raised this claim with the Agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a counselor regarding this matter, in
which case the earlier date would serve as the EEO Counselor contact date. Cf. Qatsha v. Dep't of
the Navy, EEOC Request No. 05970201 (Jan. 16, 1998).

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ANALYSIS AND FINDINGS

Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the EEO 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. 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 (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.

In the instant case, the record discloses that the most recent alleged discriminatory event occurred
on March 20, 2018, but Complainant did not initiate contact with an EEO Counselor until
November 21, 2018, which is beyond the 45-day limitation period. See 29 C.F.R. §§ 1614.105 &
1614.107(a)(2). On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the applicable time limit for initiating EEO Counselor contact. While
Complainant alleges that the discrimination is “ongoing,” he has not identified any specific
instances of discrimination beyond those alleged in his original complaint.

EEOC Regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances beyond
his control from contacting the Counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2).

On appeal, Complainant does not allege that he was unaware of the applicable time limit or dispute
that he made EEO Counselor contact on November 21, 2018. We find that Complainant has not
established that the Agency improperly dismissed his complaint here.

CONCLUSION

The Agency’s final decision dismissing Complainant's formal complaint is AFFIRMED.

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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.

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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

June 18, 2019
Date