U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnoldo P.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120161967 Hearing No. 451-2014-00011X Agency No. ARWSMR12NOV04919 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated April 21, 2016, implementing the dismissal of a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Maintenance Mechanic for the Agency at the White Sands Missile Range, New Mexico. On January 25, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, disability, and age when he learned that he would not be hired for the position of Maintenance Mechanic, WG-4749-09, based on the outcome of his medical suitability evaluation. After an investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. Thereafter, the Agency filed a Motion to Dismiss. On April 5, 2016, the AJ issued a document entitled "Order Granting Agency's Motion to Dismiss and Order Entering Judgment in Favor of the Agency." Therein, the AJ dismissed the formal complaint, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The AJ found that Complainant first initiated EEO counselor contact on this matter on December 14, 2012. The AJ determined further that Complainant was informed of his non-selection on October 4, 2012, and that the December 2012 EEO contact was more than 45 days after the alleged discriminatory event occurred. On April 21, 2016, the Agency issued its final action fully implementing the AJ's decision to dismiss the instant complaint as untimely. This appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. Here, the AJ determined that Complainant's contact of an EEO Counselor was untimely. According to the AJ, the undisputed evidence of record demonstrated that the alleged discriminatory event occurred on October 4, 2012, when Complainant was informed directly by an Agency Human Resources Specialist that he would not be hired for the position of Maintenance Mechanic at issue due to a medical suitability determination. However, according to the AJ, Complainant did not seek EEO counseling regarding his non-selection until December 14, 2012, more than 45 days after this conversation. On appeal, however, Complainant contends that the time period for seeking timely EEO counseling in this matter began to run at the time of the effective date of his non-selection for the subject position. The record contains a copy of the official "disposition" letter to Complainant informing him of his non-selection dated November 19, 2012. Therefore, while Complainant had some unofficial advanced notice that he might not be selected, the actual decision not to select him did not become effective until the Agency issued its disposition notice on November 19, 2012, at the earliest.2 Complainant's December 14, 2012 EEO counselor contact was within 45 days of the issuance of this notice of non-selection. Moreover, through counsel, Complainant argues that the AJ erred by determining that Complainant did not initiate timely contact even if the October 4, 2012 date was employed. By the Agency's own admission, the record indicates that Complainant first contacted an EEO Counselor on November 6, 2012, regarding his non-selection for the Maintenance Mechanic position. The record contains a document entitled "Information Inquiry Summary" indicating that Complainant sought EEO counseling on November 6, 2012, regarding the instant non-selection, well within 45 days of October 4, 2012. Given the circumstances of this case, we determine that Complainant's initial EEO counselor contact was timely and the AJ erred in dismissing the complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency's final action implementing the AJ's dismissal of the formal complaint on the grounds of untimely EEO contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The complaint is remanded to the Hearings Unit of the Commission's San Antonio Office, to be scheduled for hearing in an expeditious manner. The Agency shall submit a copy of this decision and the complaint file to the Hearings Unit of the San Antonio Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the claims in accordance with 29 C.F.R. § 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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. 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 14 ,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 We also note that it appears that the selectees were not actually placed in the position until June 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161967 2 0120161967