[Redacted], Birdie C, 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022004009 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Birdie C,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2022004009 Agency No. FBI-2022-00192 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 30, 2022, dismissing a formal complaint alleging 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 as a Management and Program Analyst, GS 14 at the Agency’s Federal Bureau of Investigation's (FBI) Threat Screening Center in Washington, D.C. On March 11, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On April 18, 2022, Complainant filed a formal complaint claiming that the Agency discriminated against her based on her race when, in April 2021, Complainant was not selected for the position of Supervisory Information Technology Specialist (SITS), GS-2210-14, job posting 36136, in the Information Technology Unit (ITU) at the FBI’s Terrorist Screening Center. 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. 2022004009 2 On June 30, 2022, the Agency issued a final decision, dismissing the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant should have reasonably suspected discrimination as early as May 2021, when she learned that the Selectee was White as Complainant worked with the Selectee from May 2021 through September 2021. The Agency found that Complainant’s initial EEO Counselor contact was on March 11, 2022, which it found to beyond the 45-day limitation period. The instant appeal followed. 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 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. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that they were not notified of the time limits and was not otherwise aware of them, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence they were 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. The Agency properly dismissed Complainant’s complaint for untimely EEO counselor contact. The discrete action at issue was Complainant’s non-selection for the position. Complainant’s non-selection occurred in April 2021, far more than 45 days from when Complainant initiated EEO counselor contact on March 11, 2022. Complainant has not provided sufficient evidence to support that she was precluded from timely contacting an EEO counselor. Complainant asserted that she did not reasonably suspect discrimination until she received an email allegedly indicating that management officials had a preference not to hire Black employees for positions such as the one Complainant had applied. We note that Complainant fails to provide the date of the alleged emails or the date that she read the alleged emails. Based on the available evidence, we conclude Complainant reasonably should have suspected discrimination more than 45 days before she sought EEO counseling. She was aware of her non-selection in April 2021, and was additionally aware as early as May 2021 that the selectee for the position was White, as well as her qualifications for the job, as Complainant stated that she worked with selectee from May 2021 through September 2021. Therefore, Complainant has failed to provide sufficient evidence to support her assertion that she did not reasonably suspect discrimination until nearly a year later and well beyond the 45-day limitation period. 2022004009 3 CONCLUSION The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022004009 4 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 27, 2022 Date