0120152433
02-15-2017
Monroe M.,1 Complainant, v. Dana J. Boente, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Monroe M.,1
Complainant,
v.
Dana J. Boente,
Acting Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120152433
Agency No. FBI-2014-0039
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 16, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Special Agent at the Agency's facility in Washington, D.C. Complainant indicated that he was assigned to the position of Mid-Atlantic Regional Organized Crime Drug Enforcement Task Force Coordinator (Coordinator position). In about March or April 2014, Complainant asserted that he was informed by the Section Chief that the Agency wanted to place another individual (Selectee) in his assignment. Complainant was told that he would have the option to return to his former position or to step down from his current assignment. The Section Chief gave Complainant a couple of days to decide what he wanted to do.
The Section Chief did not return to Complainant to discuss the issue again. Complainant was issued a six month extension his assignment while others received a year long extension. However, a week later, the assignment was posted as a vacancy announcement. Complainant applied for the position. On June 4, 2015, the Section Chief told Complainant that the Selectee was chosen for the position. Complainant indicated that he remained in the assignment until the Selectee was placed in the position in August 2014.
On August 21, 2014, Complainant contacted the EEO Counselor. When the matter was not resolved informally, on January 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Black) when:
1. Prior to June 4, 2014, he received only a six-month extension of his tenure in the Coordinator position; and
2. On June 4, 2014, he learned he was not selected for the Coordinator position.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was made aware of the decision not to select him on June 4, 2014. Complainant did not contact the EEO Counselor until August 21, 2014, beyond the 45 day time limit.
Complainant appealed. On appeal, Complainant indicated that he was aware of the non-selection on June 4, 2014. However, he asserted that, on June 4, 2014, he was not aware if the Selectee had accepted the position. Therefore, he waited until the Selectee took over the Coordinator position in order to contact the EEO Counselor. As such, Complainant claimed that his contact on August 21, 2014, was within the 45 day time limit and the Agency's dismissal should be reversed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, Complainant clearly indicated that he was made aware of the selection of the Selectee on June 4, 2014. Complainant asserted no basis to believe that the Selectee would not take on the Coordinator position. Complainant's statement that he was not aware that the Selectee would take the position was pure speculation. Complainant has not asserted that management misled him or contributed to his belief. Furthermore, Complainant's formal complaint specifically indicated that when he was made aware of the decision to select the Selectee, he believed that the decision was not based on merit but favoritism. Based on Complainant's statements and argument, we find that he was aware of the discrimination on June 4, 2014, when he was not selected for the position in question. He did not contact the EEO Counselor until August 21, 2014, beyond the 45 day time limit. We find that Complainant has not provided sufficient justification to extend the time frame. As such, we determine that the Agency's dismissal of the matter pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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. 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
February 15, 2017
__________________
Date
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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