U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022005180 Agency No. HS-CIS-02006-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 8, 2022, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as an Assistant Regional Director of Records at the Agency’s Southeast Office in Orlando, Florida. On July 12, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African American) when, in December 2017, Complainant was not selected for the Associate Regional Director of Operations position located at the USCIS Southeast Region Office advertised under Vacancy Announcement (VA) CIS-10045159-SER. The Agency issued a decision dismissing the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal from Complainant followed. 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. 2022005180 2 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 "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. Here, while Complainant claimed that in 2018, he learned of his non-selection for the position at issue, he did not contact an EEO counselor until January 30, 2020, nearly two years after learning of his non-selection and well beyond the 45-day limitation period. In his appeal statement, Complainant concedes that “although I was advised of the reason of my non-selection in May 2018, it was not until I did not receive my requested FOIA documents that my reasonable suspicion was formed.” However, we concur with the Agency’s determination that Complainant had reasonable suspicion of discrimination well before 45 days of his initial contact date. Complainant claimed that in May 2018, the Panel Lead for the selection committee for VA CIS-10045159-SER informed him that although he had been selected, an Associate Director of the Field Operations Divisions directed that another applicant be placed in the position at issue. In July 2018, Complainant submitted a Freedom of Information Act (FOIA) request to obtain the selection documentation, but did not receive the information until December 2019, resulting in his January 30, 2020 EEO Counselor contact. We agree with the Agency’s finding that Complainant reasonably suspected discrimination no later than July 2018, when he initiated the FOIA process. Accordingly, the 45-day time limitation for EEO Counselor contact began once Complainant reasonably suspected discrimination rather than when he felt he had accumulated sufficient evidence, such as the FOIA information, to support his suspicions. Complainant’s decision to obtain supporting facts or proof of discrimination before seeking EEO counseling resulted in his untimely EEO counselor contact. Moreover, like the Agency, we also note that Complainant has received training on the EEO complaint process and does not contend he was unaware of the timeframe. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2022005180 3 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. 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). 2022005180 4 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 7, 2023 Date
