Mauricio C.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019002937 (E.E.O.C. Sep. 5, 2019)

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

Mauricio C.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019002937

Agency No. ARUSMA18OCT03987

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated November 10, 2018, dismissing his 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.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant’s formal EEO
complaint for untimely EEO Counselor contact.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Program
Manager at the Agency’s Supply and Services Division, Food Service Branch in the Yongsan
Logistics Readiness Center, Army Support Command, South Korea.

On September 13, 2018, Complainant initiated EEO Counselor Contact. When questioned about
the 45-day time frame limitation, Complainant stated that he was unaware of the time restrictions.
Informal efforts to resolve his concerns were unsuccessful.

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 October 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race, national origin, and age when:

1. on July 8, 2018, the Director denied Complainant a Permanent Change of Station
(PCS) award;

2. on June 24, 2018, the Director informed Complainant that the gaining Activity
(West Point) denied him the Temporary Quarters Subsistence Allowance;

3. April 1, 2018, the Deputy Director denied Complainant selection into the GS-1667-
13 Food Program Manager position; and

4. on November 29, 2017, the Director informed Complainant that his overseas
extension would not be granted for the two years he requested, but would be granted
for six-months until February 8, 2019 as a result of realignment and transformation
in Area North Logistics Readiness Center.

On November 10, 2018, the Agency issued a final decision. The Agency detailed that each
incident was a discrete act which would have triggered reasonable suspicion, and Complainant’s
obligation to timely contact an EEO Counselor. The Agency determined that since the latest
incident, July 8, 2018, occurred at least 60 days prior to Complainant’s September 13, 2018, EEO
Counselor contact, Complainant was clearly outside the 45-day time frame. Moreover, the Agency
noted that Complainant had previously attended Anti-Harassment and No FEAR training where
he would have been trained on his rights, responsibilities, and time limitations for filing EEO
complaints. Further, the Agency determined that Complainant failed to provide any persuasive
arguments for tolling the time frame. Therein, the Agency dismissed the formal complaint on the
grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2).

CONTENTIONS ON APPEAL

Complainant provided several arguments concerning his claims, but none of them addressed the
crux of the issue, specifically, that he failed to timely contact an EEO Counselor within 45 days of
the allegedly discriminatory actions. Still, Complainant argued that regardless of time limits, he
was treated unfairly, and therefore his complaint should be reconsidered.

The Agency did not provide an appellate brief.

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
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“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the forty-five (45) day limitation period is triggered. 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.

The record discloses that the latest alleged discriminatory event occurred on July 8, 2018, but that
Complainant did not initiate contact with an EEO Counselor until September 13, 2018, which is
beyond the forty-five (45) day limitation period. We have reviewed the appellate arguments
advanced by Complainant. We determine that a fair reading of the complaint file reflects that
Complainant had a reasonable suspicion of unlawful employment discrimination virtually
contemporaneous with the time when the various alleged discriminatory acts occurred.

Additionally, it is apparent that Complainant was well aware of his responsibilities. The training
records demonstrated that Complainant completed EEO Anti-Harassment and NO FEAR Training
on October 18, 2016, and November 16, 2017. Those trainings would have emphasized the
importance of various deadlines in the EEO process. Complainant has not provided any persuasive
arguments that he was unaware of the 45-day time frame requirement.

In sum, we find that Complainant has not provided sufficient justification for extending the time
limit for contacting an EEO Counselor.

The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO
contact is AFFIRMED.2

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

2 The Agency is reminded that under 29 C.F.R. 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the Agency did not submit the file until July 16, 2019, approximately three months after
the Commission’s notification of the appeal.
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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).
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.

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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 5, 2019
Date