Mitchell K.v.Dep’t of the Navy

Equal Employment Opportunity Commission

Apr 30, 2019

EEOC Appeal No. 2019002360 (E.E.O.C. Apr. 30, 2019)

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

Mitchell K.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019002360

Agency No. DON184215801773

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 12, 2018, 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 Supervisory Welding
Manager at the Norfolk Naval Shipyard in Norfolk, Virginia.

On or about October 20, 2017, Complainant learned that he was not selected for the Supervisory
Training Instructor, GS-1712-13, position.

On October 23, 2017, Complainant submitted a Freedom of Information Act (“FOIA”) request
regarding the selection process for the Supervisory Training Instructor, GS-1712-13, position.

On March 22, 2018, Complainant received all of the documents associated with his October 23,
2017 FOIA request.

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 March 29, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.

On July 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination in reprisal for prior protected activity when, on March 22, 2018, Complainant
became aware through a Freedom of Information Act request that an Agency manager did not
follow the proper promotion selection process, and inappropriately influenced the panel members
in the selection of the Supervisory Training Instructor, GS-1712-13.

On November 20, 2018, the Agency issued the instant final decision. The Agency stated that the
selection for the position at issue was formally announced on October 20, 2017, but that
Complainant did not contact an EEO Counselor until March 29, 2018. The Agency determined
that Complainant did not initiate contact with an EEO Counselor within the regulatory time
frame of 45 days. The Agency found that the October 20, 2017 non-selection was a discrete
action that would trigger the need to contact an EEO Counselor. The Agency stated that the time
limit for seeking an EEO Counselor is when an individual is reasonably suspicious of potential
discrimination, but not necessarily before all of the facts are apparent. The Agency dismissed the
formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).

The instant appeal followed. On appeal, Complainant asserts that he initially contacted the
Agency on October 23, 2017 to receive all documents pertaining the selection process for the
position of Supervisory Training Instructor. Complainant asserts that at the time, he was not
aware of the discriminatory factors involved in the selection process. Complainant asserts that it
was not until he received all the documents in March 2018, that he had developed reasonable
suspicion of the discriminatory action. Complainant therefore argues that it was not feasible to
come to a reasonable suspicion until a sufficient amount of documentation was obtained and
reviewed.

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.

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 Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. Ellis v. United States Postal Service,
EEOC Request No. 01992093 (Nov. 29, 2000).

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Upon review of the record, Complainant clearly indicated that he was aware of the Agency's
decision not to select him as early as October 20, 2017. However, Complainant failed to contact
the EEO Counselor until March 29, 2018. We find that Complainant reasonably suspected he
was the victim of unlawful discrimination long before he sought counseling, and that the
suspicion is what motivated him to file his FOIA request on October 23, 2017.

Complainant has not asserted that he was unaware of the EEO complaint process, or that he was
unaware of the necessity for contacting an Agency EEO Counselor within 45-days of the alleged
discriminatory event. Instead, Complainant argues that he could not have reasonably developed
suspicions until his FOIA request was fulfilled. We are not persuaded. 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. Howard v. Dep't. of the
Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered
until Complainant reasonably suspects discrimination, but before all the facts that support a
charge of discrimination have become apparent.

Moreover, the Commission has consistently held that use of internal agency procedures, union
grievances, and other remedial processes does not toll the time limit for contacting an EEO
Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5,
1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991);
Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000).

Here, Complainant waited past reasonable suspicion to seek counseling--instead waiting until he
had gathered evidence through the FOIA system to support his claim. We therefore AFFIRM the
Agency's dismissal of the complaint pursuant to 29 C.F.R. §1614.105(a)(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 twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition.
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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

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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, Director
Office of Federal Operations

April 30, 2019
Date