U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martine L,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 0120152142 Agency No. FDICE0-15-006 DECISION Complainant filed a timely appeal with this Commission from the Agency 's final decision dated April 28, 2015, 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 as a Senior Human Resources Specialist, CG- 13, at an Agency facility in Washington, D.C. On August 12, 2014, Complainant initiated EEO counselor contact. Informal efforts to resolve her concerns were unsuccessful, and on December 22, 2014, she filed a formal EEO complaint alleging she was the victim of unlawful retaliation for prior EEO activity when, on April 11, 2014, she was rated as "not qualified" for the position Human Resources Specialist [CEP Support Manager] advertised under Vacancy Announcement No. 2014-HQ-1103. In its April 28, 2015 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO counselor contact. The instant appeal by Complainant followed. 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is publi:ihed to non-parties and the Commission's website. 2 0120152142 ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 1614.105. Section 1614.105 (a)( l) provides that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action within 45 days of the effective date of the action. The record discloses that the alleged discriminatory event occurred on April 11, 2014, but Complainant did not initiate contact with an EEO Counselor until August 12, 2014, which is beyond the forty-five (45) day limitation period. However, the Commission has adopted a "reasonable suspicion" standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the, EEOC Request No. 05970852 (February 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. On appeal, Complainant states that when she first learned of her selection rating in April 2014, she thought it was unfair in light of her qualifications, but had no reason to believe the rating was motivated by unlawful retaliatory animus. However, she contends that sometime in early July 2014, she received a telephone call from a colleague in the Dallas office concerning a staff meeting that was held by the Human Resources Officer, in which she purportedly stated that Complainant was a "trouble maker" who "likes to file EEO complaints." At this point, Complainant asserted she suspected, for the first time, that she was retaliated against for her prior EEO activity in the April 2014 selection process by Human Resources. As a result, she initiated contact with the EEO couuselor iu August 2014, within the limitation period. We are persuaded that Complainant's allegations concerning the purported negative remarks made by a Human Resources official concerning Complainant's EEO activity should be the subject of further investigation and adjudication. While the Agency raises considerable arguments on appeal that these remarks were not made, this goes to the merits of Complainant's claim which will be determined on remand. Accordingly, we REVERSE the Agency's dismissal decision and REMAND the complaint to the Agency for further processing pursuant to the following Order. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final . 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 becomes final, unless the matter is otherwise resolved prior to that time. If the 3 0120152142 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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. 4 0120152142 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 § Vll.B (Aug. S, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 th1!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 (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 fulI 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. 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 'annot 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 5 0120152142 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). Carlton M. Hadden, Director Office of Federal Operations OCT 2 92015 Date