Bart M,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019003417 (E.E.O.C. Sep. 10, 2019)

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

Bart M,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 2019003417

Agency No. IRS-19-0599-F

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated April 18, 2019, dismissing a formal
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

During the period at issue, Complainant worked for the Agency as a Computer Assistant in
Covington, Kentucky.

On February 7, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful.

On April 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected him
to unlawful retaliation for prior protected EEO activity when he was issued a notice of proposed
suspension on June 27, 2018.2

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.

2 In general, allegations regarding proposed actions not yet effectuated can be dismissed. An
exception is where, like here, the complainant has alleged the preliminary step was retaliatory.
2019003417

2
The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency
reasoned that the Notice of Proposed Suspension was issued on June 27, 2018. However,
Complainant did not initiate EEO contact until February 7, 2019, outside of the applicable time
period. The Agency further stated that “[a]ccording to [the EEO Counselor’s Report], after
Complainant asked management the status of the proposed suspension on that date [February 7,
2019], he was told that the adjudication of the proposed suspension was backed up. We are not
persuaded that Complainant suddenly suspected reprisal when he learned that a final decision on
the suspension had not yet been made. Moreover, in his formal complaint, Complainant indicated
that June 2018 was when he became aware of the alleged discrimination.” Final Agency
Decision 1-2.

The instant appeal followed. On appeal, Complainant asserts that every night he has to worry
about the proposed suspension and that it is “hanging over [his] head.”

In response, the Agency requests that we affirm its final decision dismissing Complainant’s
complaint. The Agency reiterates that Complainant’s initial EEO Counselor contact is untimely.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact.
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. 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 proposed suspension was issued on June 27, 2018. Complainant does not contest that he
received the proposed suspension around June 2018.3 We note that Complainant, in his formal
complaint, listed June 2018 as the date he first became aware of the alleged discrimination.
Complainant in the EEO Counselor’s Report asserts that on February 7, 2019, he went to his
manager’s office to inquire about the proposed suspension and was informed that the
adjudication of the proposed suspension was backed up. However, we concur with the Agency
that Complainant on the date that he had, or should have had, a reasonable suspicion of unlawful
employment discrimination.

3 The record contains an email from a union official dated July 3, 2018 sent to several
individuals, including Complainant. Therein, the email references preparing a response to the
proposed suspension at issue. Report of Investigation at 65.

2019003417

3
Specifically, based on the foregoing, we find that Complainant reasonably suspected
discrimination at the time he received the proposed suspension (late June to early July 2018) but
did not initiate EEO contact until February 7, 2019, outside of the applicable time period.4

We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO
Counselor contact.

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.

4 We remind Complainant that if the Agency eventually issues a suspension and he wishes to
pursue the matter through the EEO process, he should contact an Agency EEO Counselor within
45 days of the effective date of the suspension.
2019003417

4
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. 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

September 10, 2019
Date