U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgilio W.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120171194 Agency No. ARRUCKER16NOV04627 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 13, 2017, 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, Complainant worked as a Training Instructor at Fort Rucker in Alabama. On December 27, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic), religion (Mormon), perceived disability, and in reprisal for prior protected activity. In its final decision, the Agency determined that Complainant's complaint was comprised of the following claims: 1a. In February 2014, [Complainant] informed [a named supervisor, S1] that he [was] verbally attacked by a co-worker, and he did not look into the allegation or take any corrective action, he laughed when [Complainant] made him aware [a named co-worker] turned out the bathroom lights and told him this is what it is going to feel like for Mormons in the afterlife."; he accused [him] of making false statements and creating a disruption; verbally fired [him]; and asked if [he was] going to see a "shrink." 1b. In October 2015, [S1] refused to acknowledge the extra duty [Complainant] volunteered for on [his] Civilian Evaluation Report; 1c. On April 8, 2016, [S1] directed [Complainant] to attend mandatory training at the First Baptist Church or he would be put on leave without pay and charged with being absent without leave. 1d. On April 12, 2016, [S1] stated to a co-worker "Why can't people just come to work and do their jobs" referring to [Complainant]; 1e. on or about the end of February 2016/early March 2016, [S1] invaded [Complainant's] personal space while shopping at the Fort Rucker Commissary with [his] daughter; 1f. on April 25, 2016, [S1] was made aware that [a named employee] verbally attacked him and he did not look into the allegation or take any corrective action; and 1g. on multiple occasions, [S1] denied [Complainant's] requests to be moved due to the constant harassment [he] felt he endured. 2. on or about April 25, 2016, [Complainant] was discriminated by another Agency official who denied his request to be separated from [a named Agency employee]. 3a. on or about May 2016, [a named Agency official, A1] assigned Complainant to teach a class [he] had not taught in years and provided [him] a letter of reprimand for refusing orders; 3b. on or about May 5, 2016, [A1] provided [Complainant] with a letter of reprimand for disrespect; 3c. on or about July 11, 2016, [A1] provided [Complainant] with a letter of counseling and charged him with being absent without leave; and 3d. on or about July 16, 2016, [A1] suspended [him] and placed [him] on paid administrative leave after receiving his letter of resignation. 4. on July 18, 2016, Complainant resigned from his position under duress effective August 12, 2016; and 5. In August 2016, [S1], his previous supervisor, told Alabama unemployment that Complainant "left without reason." The Agency dismissed Complainant's entire complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on November 23, 2016, and the last incident occurred in August 2016. Thus, the Agency found that Complainant's November 23, 2016 EEO contact was outside the applicable time period. In its final decision, the Agency further noted "[Complainant] previously initiated a pre-complaint on August 8, 2016, for the same allegations...[Complainant] then decided to discontinue the process on September 7, 2016...[Complainant was] issued a Notice of Right to File a Formal Complaint (Notice) on December 9, 2016. The Notice was mailed Certified Return Receipt and the postal service sent notice to [Complainant]...on September 10, 2016 and September 20, 2016. Because the package was never claimed, it was returned [to the Agency's EEO Office]." The instant appeal followed. Complainant does not submit a statement or brief in support of his appeal. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. While the record reflects that Complainant previously contacted the Agency's EEO office on August 8, 2016, the record reflects that Complainant abandoned these matters. The record contains a memorandum from an EEO Counselor to Complainant regarding his EEO activity in August 2016. Therein, the memorandum provides, "this serves as notice that on [September 7, 2016], [Complainant] contacted the EEO office and left a voice mail message stating that he was] no longer interested in pursuing [his] EEO complaint...[He] initially contacted an EEO official on August 8, 2016." The record further reflects that the Agency sent Complainant a Notice of Right to File a Formal Complaint (Notice) via certified mail return receipt requested to Complainant's address of record and Complainant was notified of such on September 10 and September 20, 2016. The package (containing the Notice) was not claimed by Complainant and it was returned to the Agency. Based on the foregoing, we find that Complainant abandoned these claims. The Commission has consistently held that first contact with an EEO Counselor does not count as initial EEO contact for timeliness where a complainant seeks counseling, withdraws, and then re-initiates EEO contact on the same matter months later. See Barrios v. Dep't of the Navy, EEOC Appeal No. 01A34748 (Dec. 1, 2003). Complainant's subsequent EEO contact on November 23, 2016 is outside of the applicable time limit. Complainant has not presented sufficient justification for an extension of the of the time limit. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 June 22, 2017 __________________ 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 0120171194 5 0120171194