[Redacted], Norbert K., 1 Complainant,v.Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2023000661 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norbert K.,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2023000661 Hearing No. 450-2021-00354X Agency No. FDICEO-21-010 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated October 12, 2022, implementing the dismissal of a formal complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was an applicant for two positions with the Agency's Dallas Regional Office in Dallas, Texas. On February 10, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race, religion, and disability when, on January 15, 2021: 1. Complainant was notified that he was not hired for a Resolutions and 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. 2023000661 2 Receiverships Specialist (Claims Administration), CG-1101-09 position, advertised under Vacancy Announcement No. 2020-DAL-B0104; and 2. Complainant was notified that he was not hired for a Resolutions and Receiverships Specialist (Customer Service), CG-1101-09 position, advertised under Vacancy Announcement No. 2020-DAL-B0049. After its investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On April 29, 2022, the Agency filed a motion with the AJ to dismiss the formal complaint for untimely EEO Counselor contact. Complainant filed an opposition to the motion. On September 9, 2022, the AJ dismissed the entire formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ determined that the record reflected that Complainant became aware of his non-selections as early as September 21, 2020, or as late as the end of October 2020,2 but did not initiate EEO counselor contact until January 19, 2021, which was well beyond the 45-day regulatory limitation period. The AJ noted that Complainant had discussed his non-selections with an EEO Specialist on December 11, 2020. However, the AJ found that Complainant did not express the requisite intent to initiate the EEO process at that time. Therefore, the AJ determined that Complainant’s January 19, 2021 EEO counselor contact was untimely and dismissed the formal complaint. On October 12, 2022, the Agency issued a final order implementing the AJ’s dismissal for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that he timely initiated EEO counselor contact. Complainant asserts that he contacted the EEO Specialist on December 11, 2020, and he requested to file a formal complaint on January 19, 2021, which he subsequently filed on February 9, 2021. Complainant argues the December 11, 2020 meeting should be deemed his initial EEO contact. Complainant further reasons that he did not have reasonable suspicion that his non-selection was discriminatory until January 19, 2021, which was when he “was able to observe the differences between people who were selected for the positions and [himself].” 2 The AJ determined that documentation in the record suggested that Complainant had enabled automatic notifications on his USAJobs.gov account, the online program where he applied for the positions, which would have notified him on September 21, 2020, of his non-selection regarding the position vacancy identified in claim 1. The AJ acknowledged that Complainant indicated in his formal complaint that he did not became aware of his non-selection for the vacancy identified in claim 2 until January 15, 2021. However, the AJ noted that Complainant testified in a sworn affidavit that he was notified of his non-selection for both vacancies at the end of October 2020. The AJ determined that Complainant initiated EEO Counselor contact on January 19, 2021, which the AJ found to be outside of the 45-day limitation period. 2023000661 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for untimely EEO counselor contact. 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of 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. The record reflects that the AJ properly granted the Agency’s Motion to Dismiss the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant testified in his sworn affidavit that he became aware of both of his non-selections in October 2020. Even if we presume that Complainant was not notified until October 31, 2020, Complainant had 45-days, or until December 15, 2020, to timely initiate EEO Counselor contact, but did not do so until January 19, 2021. It is well settled that a complainant satisfies the criterion of EEO counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, we acknowledge that Complainant met with an EEO Specialist, an official logically connected with the EEO process, on December 11, 2020. However, we do not find that Complainant exhibited the requisite intent to pursue an EEO complaint at that meeting. The record includes a December 23, 2020 email from the EEO Specialist to Complainant summarizing their meeting on December 11, 2020. The email states the following: On December 11, 2020, we met and discussed information related to the informal EEO complaint process. During the meeting, you shared with me your concern regarding not being hired for a Customer Service Representative and Claims position you applied for with the FDIC. You also mentioned that your disability and religion may have been a factor in the decision and that [management official] was involved in the selection process. At the conclusion of our meeting, you stated that you did not want to file an informal complaint at this time. Since you do not want to file a complaint, your interaction with me will be deemed as a “contact only.” Please sign the attached Notice of 45 Days to Request EEO Counseling form and return it to me via email. Should you change your mind or have questions about the process contact me. 2023000661 4 In this email, the EEO Specialist clearly stated that Complainant had no intent to pursue the EEO process at that time, even though Complainant had been aware of his non-selections as early as October 31, 2020, and even though during the December 11, 2020, Complainant indicated that he had suspected that his non-selections were discriminatory. The record indicates that it was not until January 19, 2021, that Complainant emailed the EEO Specialist and stated, “I would like to file an informal EEO complaint.” Therefore, Complainant did not express an intent to pursue the EEO process until January 19, 2021, which was more than 45-days after Complainant learned, on approximately October 31, 2020, that he was not selected for both positions. Notably, if Complainant had pursued the EEO process and initiated EEO counselor contact during the December 11, 2022 meeting, he would have done so within 45-days after he was informed of his non-selection on October 31, 2020. Complainant has not provided adequate justification for extending the 45-day limitation period. Therefore, we find that the AJ properly granted the Agency’s motion to dismiss the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. CONCLUSION The Agency’s final order implementing the AJ’s dismissal of the formal complaint on the grounds of untimely EEO counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2023000661 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2023000661 6 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 March 22, 2023 Date