U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022005012 Agency No. HS-CIS-01325-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 8, 2022, 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 During the period at issue,2 Complainant worked as an Intelligence Research Specialist, Grade GS-14, at the Agency’s Intelligence Division within the Agency’s headquarters in Washington, D.C. From May 2021 through February 2022, Complainant worked as a Supervisory Intelligence Specialist while serving as a temporary acting Chief for his Fraud Detection and National Security section within the Intelligence Division. Between September 2021 and October 2021, Complainant applied for a promotional vacancy to Supervisory Intelligence Research Specialist so that he could become the permanent Chief of the Fraud Detection and National Security section. 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. 2 Complainant began working for the Agency in 2011. 2 2022005012 The Agency deemed Complainant, another internal Agency candidate, as well as two external candidates to be among the best qualified for consideration for the permanent Section Chief position. On November 17, 2021, a panel of three managers interviewed Complainant. On January 11, 2022, the selection official who had led the interview panel verbally notified Complainant that the Agency had selected one of the external candidates and provided Complainant a blank copy of the scoring sheet that had been used by the interview panel. On March 6, 2022, Complainant initiated contact with an EEO Counselor. Complainant and Agency management were unable to resolve the matter through informal EEO counseling. On May 19, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of race (African American or Black) when: On January 11, 2022, Complainant was notified that an external candidate had been selected for the Supervisory Intelligence Research Specialist, advertised under Vacancy Announcement Number FDSID-2021-0011. On September 8, 2020, the Agency issued the instant final decision, dismissing the formal complaint for untimely EEO Counselor contact under 29 C.F.R. §1614.105(a)(1) and 29 C.F.R. §1614.107(a)(2). Specifically, the Agency determined that Complainant had learned of his allegedly discriminatory non-selection on January 11, 2022, when the selection official verbally told Complainant that he had not been selected. The selection official had informed Complainant that one of the external candidates was the selectee and that if the selectee declined to accept the vacancy, then the other internal candidate was the alternate selectee. The Agency maintained that, thereafter, Complainant did not contact an EEO Counselor until March 6, 2022, which was more than 45 calendar days after he had learned that he was not selected. The instant appeal followed. On appeal Complainant argues that his EEO Counselor contact was timely based on the date the Agency gave official notice that it had selected the external candidate. 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 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 calendar 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 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. 3 2022005012 EEOC Regulation 29 C.F.R. 1614.107(a)(2) mandates that a discrimination complaint that fails to comply with the applicable time limits shall be dismissed. Time limits shall be extended if a complainant was not notified of the time limits, was unaware of them, or reasonably did not know that the discrimination occurred, or that, despite due diligence, circumstances beyond Complainant’s control prevented timely EEO Counselor contact, or for other reasons considered sufficient by the Agency or EEOC. 29 C.F.R. § 1614.105(a)(2). Here, we find that the Agency improperly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. Complainant acknowledged that he had first learned of his non-selection from a discussion with the selection official as early as January 11, 2022. Nevertheless, we find the Agency’s dismissal for untimely EEO Counselor contact was improper under 29 C.F.R. § 1614.105(a). Specifically, the record reflects that the selectee for the position was announced to the office on or about February 10, 2022. Although the official selection notice was absent from the record, the Agency admitted February 10, 2022, was the official effective date for the appointment of the selectee for the subject position. Because the Agency gave Complainant official notice of non-selection on February 10, 2022, his EEO Counselor contact on March 6, 2022, was therefore timely. This Commission has consistently held that generally the selection official’s informal verbal notice of the non-selection did not trigger the time limit for EEO Counselor contact. Emerson P. v. Dep’t of Justice, EEOC No. 0120162817 (Dec. 22, 2016). CONCLUSION We REVERSE the Agency's final decision dismissing the formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 4 2022005012 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 5 2022005012 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 6 2022005012 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 March 7, 2023 Date
