U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyle S.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120151549 Agency No. 146238103125 DECISION Complainant timely appealed to this Commission the Agency's January 25, 2015 decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a C848 Supply Utilityman (WM-09) for the Agency's Military Sealift Command on board USNS KANAWHA. On December 19, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), age (45), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On May 9, 2014 Complainant was written up and repatriated from (escorted off of) the USNS KANAWHA. 2. On June 4, 2014, Complainant received a Letter of Reprimand as discipline for the incidents leading to his May 9, 2014 repatriation. The above claims are personnel actions resulting from alleged incidents that took place during the week of May 7, 2014, which motivated Complainant's fellow crewmembers to inform management that Complainant allegedly violated Ship Orders Nos. 28, 28, and 29. (Crewmembers shall not create an unnecessary disturbance; crewmembers shall not use abusive or insulting language about another crew member; and crewmembers shall not commit assault or inflict injury upon other personnel, respectively). Complainant contends the crewmembers' statements were fabricated and motivated by discriminatory animus and retaliation for his recent reports of health code violations to his supervisors. On May 16, 2014, Complainant made initial contact with the Labor Employee Relations (LER) department to challenge the write up and his repatraiation and an investigation was initiated. Shortly after receiving the Letter of Reprimand on June 4, 2014, Complainant contacted the LER investigator and requested documentation from the investigation. Complainant also made a number of requests for documents concerning his claims throughout June and July 2014, but missed the deadline to appeal the Letter of Reprimand through the grievance procedure. Complainant made initial contact with an EEO Counselor on August 5, 2015. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 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) 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. (Complainant v. United States Postal Serv. (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012)) Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEQC Request No. 05920506 (Aug. 25, 1992). The record discloses that the alleged discriminatory events occurred on May 9, 2014 and June 4, 2014 but Complainant did not initiate contact with an EEO Counselor until August 5, 2014, which is beyond the forty-five (45) day limitation period for both claims. Both of Complainant's claims arise from personnel actions, which he acknowledged in writing, triggering the limitation period to contact an EEO counselor. The date of these actions, coinciding with Complainant's "reasonable suspicion" is undisputed. The Agency successfully met its burden to show Complainant was aware of the forty-five (45) day limitation period. It had already provided Complainant with EEO information, including the forty-five (45) day limitation period, for two other EEO actions Complainant brought prior to the instant complaint. The Agency also submitted evidence that Complainant participated in EEO training, which referenced the forty-five (45) day time limit. Finally, the Agency noted that this information is posted in employee common areas of the various ships where Complainant has worked over twelve years. On appeal, Complainant asks us to consider his challenging schedule and the Agency's delayed response to his information requests, which he claims he needed in order to proceed with an EEO complaint. Given Complainant's knowledge of the EEO process, neither these considerations, nor any other argument on the record warrants an extension of the time limit for initiating EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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. 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, 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 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 4, 2016 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151549 5 0120151549