Harris K.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionJun 18, 20192019002461 (E.E.O.C. Jun. 18, 2019) Copy Citation 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. 2019002461 2 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). 2019002461 3 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. 2019002461 4 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. 2019002461 5 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 Copy with citationCopy as parenthetical citation