Irvin C.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

2019004218 (E.E.O.C. Sep. 12, 2019)

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

Irvin C.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 2019004218

Agency No. HS-ICE-02599-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 6, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Deportation Officer, GS-12, at the Agency’s
Enforcement and Removal Operations in Pittsburgh, Pennsylvania.

On August 17, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.

On November 20, 2018, Complainant filed the instant formal complaint. Complainant claimed
that the Agency subjected him to discrimination on the basis of age when, in July 2015, Agency
management promoted a younger job candidate over him, to a Supervisory Deportation and
Detention Officer position, GS-13, in Pittsburgh, Pennsylvania, advertised under Vacancy
Announcement #LAG-FPA-1417501-SB-518-DHA.

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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In its May 6, 2019 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the Agency found that
Complainant’s initial EEO Counselor contact on August 17, 2018, was beyond the time limitations
established by EEOC regulations.

The Agency noted that Complainant claimed that it was not until July 2018, when he became aware
that the selectee for the subject position had been allowed to change the dates of his interview and
writing sample giving him an unfair competitive advantage in the selection process. In addition,
the Agency noted that Complainant cited conversations dating back to April 2017 regarding the
selectee not accepting interview dates allegedly to build a competitive advantage.

The instant appeal followed. On appeal, Complainant states that in the Agency’s final decision, it
stated “that the DHS EEO complaint tracking database reflected that I have prior protected activity.
In turn, I am deemed to have constructive knowledge of EEO time limits. This is an inaccurate
statement. I have no interactions with EEO during my career, which entails over 21 years of
service.”

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 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.

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 EEO Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

The Agency correctly determined that Complainant’s EEO Counselor contact concerning the
instant matter was three years after the selection at issue and well beyond the 45-day limitation
period. Complainant, on appeal, contends that he was unaware of the time limit to seek EEO
counseling. In the instant final decision, the Agency argued that Complainant was aware of the
time limitations for timely contacting an EEO Counselor because he had engaged in prior protected
activity. However, as the record contains no information on Complainant’s asserted prior
protected activity, we decline to impute knowledge of the 45-day time limit to Complainant.

Nevertheless, the Commission has consistently held that a complainant must act with due diligence
in the pursuit of his claim or the doctrine of laches may apply. See Becker v. U.S. 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 Services, EEOC
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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 his claim. Such as
is the case here. While Complainant seems to be arguing that he did not reasonably suspect
discrimination until three years after the selection at issue, we are not convinced. Complainant
was aware of the selection decision and who the younger selectee was in July 2015. Complainant
also referenced discussions much earlier than his initial EEO counseling contact concerning
suspicions that the selectee had built an unfair competitive advantage. This indicates that he had
or should have had a reasonable suspicion of discrimination sufficient to motivate him to seek
EEO counseling long before he did.

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

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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).
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 12, 2019
Date