U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ollie N.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2022001763 Hearing No. 520-2021-00359X Agency No. HS-FEMA-00888-2020 DECISION On February 14, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant had applied for a Disability Integration Advisor position with the Agency’s Reservist Program. In January 2014, he received a tentative offer of employment from the Agency, contingent upon a favorable security background investigation. On March 5, 2014, Complainant was notified by the Supervisory Personnel Security Specialist, Personnel Security Division, Office of the Chief Security Officer (OCSO) that the OCSO had found Complainant unsuitable for the position of Disability Integration Advisor with the Agency based on the determination that Complainant provided false information concerning his education in his application. 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. 2022001763 2 Because on the determination by the Personnel Security Division, Complainant was told by a Human Resources Specialist he could not be onboarded, and the Agency had to withdraw the offer of employment for the Disability Integration Advisor position. In the fall of 2016, Complainant applied for an Incident Management (IM) Cadre of On-Call Response/Recovery Employee (CORE) position with the Agency. As part of the screening process, Complainant’s previous 2014 security file was reviewed by the OCSO. On October 5, 2016, the OCSO contacted Complainant requesting information related to the unresolved discrepancy concerning his education record because OCSO was processing a background investigation to determine Complainant’s fitness for entry on duty as an Agency employee. Previously, OCSO had determined Complainant’s claim of a master’s degree in Public Administration (MPA) awarded in 2011 was false. In 2016, his resume indicated he received the MPA degree in 2015. Complainant was given until October 12, 2016, to respond to the discrepancy and mitigate the previously validated false information from 2014. When Complainant failed to respond to the inquiry, the previous 2014 OCSO decision remained in effect. On October 26, 2016, the same Supervisory Personnel Security Specialist emailed Complainant the Agency’s determination that he had been found unfit for the position of IM CORE Disability Integration Advisor. In 2018, Complainant applied for the position of Disability Integration Advisor with the Reservist program. On June 11, 2018, OCSO notified Complainant that the preliminary background check disclosed issues of concern relating to his education and he was asked to provide a copy of his transcript and/or diploma within 30 days. On June 12 and 13, 2018, Complainant and his university sent the Agency the requested documents. The new information mitigated the previous discrepancies with his educational record and OCSO found Complainant fit for employment. On September 16, 2018, Complainant was appointed as a Disability Integration Advisor in the Agency’s Reservist Program. Around September 4, 2019, Complainant emailed the Personnel Security Branch Chief (Branch Chief), PSD, OCSO, and a Human Resources Specialist because he sought resolution and compensation for the October 2016 fitness determination and wanted the position he had been offered in 2016 instead of his current position. In November and December 2019, Complainant was informed that there was nothing the HR office could do to assist him. On December 9, 2019, Complainant emailed the Branch Chief, asking her to provide a written statement that the OCSO’s 2014 and 2016 fitness determinations about Complainant were erroneous. The Branch Chief did not respond to Complainant’s December 9, 2019 email. On April 11, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the basis of race (Black/African-American) when: 1. In 2014, the Supervisory, Personnel Security Specialist, deemed Complainant unfit for employment, which was signed off by the Personnel Security Branch Chief; 2022001763 3 2. On October 26, 2016, Complainant was deemed unfit for employment based on the determination from 2014; and 3. On December 23, 2019, the Personnel Security Branch Chief failed to respond to Complainant’s request for the necessary determination to address the erroneous unfit determination made in 2014. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On October 31, 2019, the AJ issued a decision granting the Agency’s motion to dismiss. In the AJ’s decision, the AJ reasoned that the complaint should be dismissed for untimely EEO contact (Claims (1) - (3)) and for failure to state a claim (Claim (3)). Specifically, the AJ found that Complainant made initial EEO contact on February 7, 2020, years outside of the 45-day limitation period and Complainant failed to demonstrate any basis for extending the 45-day time limit. The AJ found Complainant was well aware of the relevant time limit in part because he had taken numerous EEO trainings from May 2013 through January 2014. The AJ dismissed Complainant’s arguments that he made efforts to contact various individuals throughout the Agency over the years to fix what he perceived to be an error. However, as the Commission has consistently held that use of an Agency’s internal appeals processes does not toll the 45-day limitation period, and this did not amount to EEO contact or operate to excuse the 45-day limit. Additionally, the AJ found Claim (3) failed to state a claim pursuant to 29 C.F.R. § 1614.103 because Complainant had not suffered cognizable harm and, therefore, he was not an aggrieved employee. As a result, the AJ dismissed the complaint. When the Agency failed to issue a final order within 40 days of receipt of the AJ's September 13, 2021 decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R § 1614.109(i). The instant appeal then followed. CONTENTIONS ON APPEAL On appeal, Complainant argues, amongst other things, that the AJ’s decision to dismiss the claims in his complaint should be reversed and the Commission should order the complaint be sent back to the AJ for a hearing. 2022001763 4 ANALYSIS AND FINDINGS Claims 1 and 2 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 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. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 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 complaint of discrimination have become apparent. 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). Here, the record evidence shows that Complainant’s contact with the EEO Counselor was more than 45 days beyond the discrete events in Claims 1 and 2. Complainant argues on appeal that he notified a variety of Agency officials of the behavior by the Supervisory, Personnel Security Specialist, as well as notifying the Specialist and his supervisor, yet was never advised of his EEO rights. Complainant argues that because he was never employed in the Office of Equal Rights or in Human Resources, he was not aware of the time limits for initiating an EEO complaint. The Commission notes that, to the extent Complainant asserts that these attempts to resolve the issue should warrant extending the time limit, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Furthermore, the record evidence establishes that Complainant had knowledge of the EEO process. See, e.g., Ol N. v. Dep't of Just., EEOC Appeal No. 2020000492 (Apr. 26, 2021) (affirming an AJ's dismissal of a claim for untimely EEO Counselor contact where the agency provided proof of complainant's EEO training from previous federal employers despite complainant's contention that the agency had not shown said training covered the applicable 45-day time limit), req. for recon. den., EEOC Request No. 2021003350 (Aug. 24, 2021). Thus, we find Complainant has failed to provide sufficient justification for extending or tolling the time limit. Claim 3 We note that, in relevant part, 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. 2022001763 5 An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that they were discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The AJ determined that Claim (3) also was untimely raised with an EEO Counselor as it concerns an incident that occurred on December 23, 2019, one day beyond the 45-day limitation period. Even assuming that Complainant timely contacted the EEO Counselor regarding Claim (3), the Commission finds the AJ properly determined Complainant failed to state a claim because he did not establish that alleged action in Claim (3) rendered him aggrieved. Complainant was not entitled to a written decision stating the previous determination in 2014 was incorrect, nor was he entitled to retroactive placement in the positions for which he had previously applied and been deemed unfit. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action adopting the AJ’s decision. 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. 2022001763 6 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. 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. 2022001763 7 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 February 8, 2023 Date
