Towanda B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 22, 2019

2019000384 (E.E.O.C. Feb. 22, 2019)

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

Towanda B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 2019000384

Agency No. HS-CBP-01248-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 21, 2018, dismissing her 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 an Entry Specialist,
GS 1894-11 at the Agency’s San Francisco Port of Entry, San Francisco Field Office in San
Francisco, California.

On March 9, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution
of her concerns were not successful.

On April 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination based on race, age, and in reprisal for prior protected EEO activity when:

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.
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on February 15, 2018 she discovered that her Electronic Official Personnel Folder
(eOPF) was permanently missing. Consequently, she was unable to obtain an
estimate of her retirement income for the purpose of financial planning.

In its final decision, the Agency determined that the claim raised in the instant formal complaint
was not timely raised with an EEO Counselor. Therefore, the Agency dismissed the formal
complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2).

The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 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 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. Department
of the Navy, EEOC Request No. 05970852 (February 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.

Complainant asserted that she learned on February 15, 2018, that the Agency had lost her eOPF.
Complainant further contends that the Agency advised her that she would need to re-create the
documents in the folder so that she could obtain an estimate of her retirement income.
Therefore, she argues that her March 9, 2018 initial EEO counseling contact was timely made
within the 45-day limitation period.

However, a review of the record discloses that on November 14, 2017, Complainant sent an
email to an Agency official in its Office of Human Resources Management containing the
subject line “Lost Personnel File.” Therein, Complainant suggests that the Agency attempt to
locate her missing personnel records by using her previous married name. In another email from
Complainant to the Agency’s Human Resources Office dated December 26, 2017, Complainant
stated the following:

The government has lost my personnel file and there is no existing information on
me. What am I supposed to do? All I want to do is retire – to end working. Had
I received a retirement estimate, I may have opted to retire this month, but it is
now too late.

Based on this evidence, we conclude that Complainant had a reasonable suspicion of alleged
discrimination as early as November 2017, but did not initiate contact with an EEO Counselor
until March 9, 2018, which is beyond the forty-five (45) day limitation period. Complainant has
not indicated that she was unaware of the time limitations for timely contacting an EEO
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counselor regarding her concerns, nor has she indicated that she was prevented by reasons
beyond her control from timely contacting an EEO Counselor in accordance with EEOC
Regulations. On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor contact. Consequently,
we find that the Agency’s decision dismissing the instant matter pursuant to EEOC Regulation
29 C.F.R. § 1614.107(a)(2) was proper.

CONCLUSION

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

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).
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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. 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 22, 2019
Date