U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 0120162817 Agency No. DEA-2016-00689 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision which was received by Complainant's counsel on August 23, 2016,2 dismissing his 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., 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 Special Agent (SA) GS-1811-14 Group Supervisor at the Agency's Oakland Resident Office facility in Oakland, California (Oakland RO). The record reflects the following chronology of events. On March 4, 2016, a retirement celebration was held for Complainant's immediate outgoing supervisor who was then Resident Agent-In-Charge (RAC) for the Oakland RO. On March 6, 2016, the Agency named Complainant acting RAC. Complainant expressed interest to the Agency's San Francisco Division in applying to be appointed RAC on a permanent basis. Complainant was advised that the matter would be decided at higher headquarters and that in the meantime he should update his resume in preparation for a possible announcement of a solicitation to fill the RAC vacancy. On March 29, 2016, Complainant's regional supervisors at San Francisco Division, the Special Agent-In-Charge (SAC) and the Assistant Special Agent-In-Charge (ASAC) had a face-to-face meeting with Complainant. The ASAC and SAC said that the Agency would not appoint Complainant as the permanent RAC. Instead, they identified an individual from another office within the San Francisco Division as the likely selectee for the RAC position (hereinafter "Selectee"). The Selectee was younger than Complainant, female, and non-Hispanic. Immediately, Complainant questioned the ASAC and SAC about the motives behind his non-selection. According to Complainant, the SAC and ASAC expressed that they were "90-percent sure" that Selectee would become RAC. On April 22, 2016, Agency's departmental assignments unit emailed the San Francisco Division a message approving the Selectee for voluntary transfer to the Oakland RO as the RAC. Complainant was not listed among the recipients of this email. The message did not contain a specific reporting date when Selectee would assume RAC duties at the Oakland RO. On May 4, 2016, the ASAC sent the emailed Complainant: "Please work on cleaning up the RAC office in anticipation of the new RACs arrival. Please also determine whether the office needs a new paint job." On May 5, 2016, the ASAC emailed Complainant and his coworkers at the Oakland RO that the Selectee's transfer had been approved. With that email, ASAC included the Selectee's transfer approval notice that was dated April 22, 2016. The ASAC's email also declared that Selectee's reporting date would be May 15, 2016. In closing, the ASAC thanked Complainant for serving as acting RAC during the interim. On May 17, 2016, Complainant initiated EEO Counselor contact. On July 8, 2016, Complainant filed his formal EEO complaint alleging that the Agency's decision not to select him as the permanent RAC had subjected him to discrimination on the bases of national origin (Hispanic), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964.3 In its final decision of August 23, 2016, the Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant had waited 49-days from the non-selection notification meeting of March 29, 2016. The instant appeal followed. On appeal and through counsel, Complainant asserts that his EEO counselor contact was indeed timely. Complainant's counsel argues that the March 29, 2016, discussion with the SAC and ASAC was not, at that time, a personnel action with an effective date. 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 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, we find that the Agency improperly dismissed Complainant's formal complaint for untimely EEO counselor contact. On March 29, 2016, Complainant received unofficial advance notice from his regional leadership that he likely would not be selected for the RAC at the Oakland RO. The ASAC and SAC also informed Complainant who the Agency would select in lieu of him to a "ninety-percent degree" of certainty. This, however, was not official notification of his non-selection. At that point, we find that there was still a possibility that the Selectee might not have either been selected or accepted the RAC position in Oakland. From the Agency's record, it is also unclear whether the non-selection discussion conversation involving the ASAC, SAC and Complainant, definitively advised him whether the Agency would make a job announcement wherein he could apply to fill the RAC vacancy. After all, the ASAC had, at one point, advised Complainant to prepare his resume for such an opportunity. Hence, the circumstances of this case support Complainant's position that his claim of discrimination did not become reasonably apparent until May 2016, when Complainant was officially informed that the Selectee's transfer to the Oakland RAC position had been approved and her start date was announced. Prior to the ASAC's email of May 5, 2016, it was reasonable for Complainant to think that he still had a ten-percent chance of remaining in his acting RAC slot. However, after the ASAC's email, Complainant had official notice that Selectee would replace him and serve as the permanent RAC with an effective date of May 15, 2016. Only then did all the facts to support a claim of discrimination become apparent to Complainant. See Arnoldo P. v. Dep't of the Army, EEOC Appeal No. 0120161967 (Sept. 14, 2016) (while Complainant "had some unofficial notice that he might not be selected, the decision not to select him did not become effective until the Agency issued its disposition notice . . ."). Accordingly, the trigger-date for the 45-day EEO counselor contact began on May 5, 2016, not on March 29, 2016 as the Agency contends. Therefore, we find that the Complainant's EEO Counselor contact on May 17, 2016, was timely. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) 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. 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 (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 December 22, 2016 __________________ Date ARP Companion Case Checklist Complainant Agency Appeal/Request/Petition No. Joseph Jimenez, DOJ (DEA) 01-2016-2817 OPEN CASES Appeal No. IMS Status Related (Yes/No) Actions Taken CLOSED CASES Appeal No. IMS Status Related (Yes/No) Actions Taken CLASS ACTION CASES Appeal No. IMS Status Related (Yes/No) Actions Taken Robert Watkins 11/30/16 Attorney 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 The Agency's final decision itself was signed but undated. 3 The EEO Counselor's intake paperwork also had race selected but then crossed it off as a basis for alleged discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-2817 2 0120162817