[Redacted], Samuel C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022004669 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022004669 Agency No. DLAF-22-0173 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 25, 2022, dismissing his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as an Accountant, GS-13, in Fort Belvoir, Virginia. On June 24, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. On July 25, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race, sex, color, and age when, on April 21, 2022, he learned that he was not selected for the position of Staff Accountant, DLAFJ8-22-11415059-MP. In its August 25, 2022 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 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. 2022004669 2 This appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an 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 record discloses that the alleged discriminatory event occurred on April 21, 2022, but the Agency asserts Complainant did not initiate contact with an EEO Counselor with an intent to pursue the EEO process until June 24, 2022, which is beyond the forty-five (45) day limitation period. A complainant satisfies the requirement 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 Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep't of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep't of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, Complainant learned on April 21, 2022, that he was not selected for the staff accountant position. Subsequently, on May 10, 2022, Complainant contacted both the Union and the Agency’s EEO Office to discuss “possible solutions and assistance.” On May 18, 2022, a representative from the Agency’s EEO Office provided Complainant with relevant intake forms and offered to meet Complainant that same day to discuss his concerns. In an email from Complainant to the EEO Office representative, Complainant indicated that he had elected not to file an EEO complaint and, instead, chose to pursue the matter through the Agency’s negotiated grievance process. Thereafter, on June 24, 2022, Complainant again contacted the EEO office via email advising that he was no longer challenging his non-selection through the grievance process. Complainant inquired about next steps to “initiate and complete” the EEO process. In addition, the record indicates that Complainant attached a pre-complaint form to his email identifying April 21, 2022, as the date of his non-selection. Here, we conclude that the record supports the Agency’s conclusion that Complainant did not exhibit the requisite intent to begin the EEO complaint process until his June 24, 2022 second contact with the EEO office, which was beyond the required 45-day limitation period. Moreover, 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. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). 2022004669 3 Finally, on appeal, Complainant now contends that although he learned of his non-selection on April 21, 2022, he did not reasonably suspect unlawful employment discrimination until May 10, 2022, when he realized that the selecting official for the accounting position was purportedly refusing to meet with him. The Commission has long 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. Here, we are not persuaded that Complainant did not reasonably suspect discrimination when he first learned of his non-selection on April 21, 2022. CONCLUSION The Agency's final decision dismissing the formal complaint for the reasons discussed above 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 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. 2022004669 4 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. 2022004669 5 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 December 19, 2022 Date