U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanice C.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2019005652 Agency No. 2018-27600-FAA-03 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 2, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control (ATC) Specialist, 2152, LH, at the Agency’s Charlotte Douglas Air Traffic Control Tower facility in Charlotte, North Carolina. On January 25, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when she learned on September 26, 2017, that she was not selected for the ATC Specialist Staff Support Specialist, AT- 2152-LI, advertised under vacancy number ASO-ATO-17-A134-52443. On June 27, 2019, an EEOC Administrative Judge (AJ) dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The Agency adopted the AJ’s dismissal in its final order. 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. 20190056522 The instant appeal followed. On appeal, Complainant alleges that she did not suspect discrimination until September 26, 2017. She explains that, on August 24, 2017, she met with a manager about her non-selection and was informed she was not selected because she did “a bad job” on a prior assignment; on September 24, 2017, she requested information about her past appraisals; on September 26, 2017, she received an email indicating that she did not have any poor appraisals and this is when she suspected discrimination. She notes that she filed her claim on October 10, 2017, which was within the 45-days of receiving this email. In response, the Agency argues that there is substantial evidence to support finding that Complainant failed to comply with the applicable time limit because she knew or should have reasonably suspected discrimination in May 2017. ANALYSIS AND FINDINGS EEOC regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination must 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. During her March 7, 2019 deposition, Complainant attested that she knew she was not selected for the position when the Agency selected two other candidates, which was in May 2017. In non- selection cases, the Commission has held that the 45-day limitation to contact an EEO counselor begins when the complainant learns the identity of the selectees and not after requesting a meeting with management concerning the non-selection. See Archie v. Department of Homeland Security, EEOC Appeal No. 2019000588 (April 10, 2019). Here, Complainant’s meeting with a manager and subsequent email correspondence may have produced facts relating to her allegation of discrimination, but we find she reasonably suspected discrimination in her non-selection in May 2017, when she learned the identities of the selectees. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar her claim. Here, the 45-day time period to contact an EEO counselor began in May 2017, but Complainant did not do so until October 10, 2017, which is more than 45 days after May 2017. Consequently, her initial 20190056523 contact with an EEO counselor was untimely. She has also failed to provide sufficient justification for extending or tolling the time limit. Accordingly, the Agency's final decision dismissing Complainant's 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). 20190056524 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 August 31, 2020 Date
