U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marya S,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency. Appeal No. 0120180757 Agency No. DOS-0330-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 30, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) 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 Program Manager at United States Embassy in Kazakhstan.2 On July 28, 2017, Complainant initiated EEO Counseling. Informal efforts to resolve his concerns were unsuccessful. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability, age, and reprisal for reporting fraud, waste, and abuse of government funding. In its final decision dated November 30, 2017, the Agency determined that Complainant's complaint was comprised of the following claims: 1. As recently as January 2017, [Complainant was] paid at a lower rate compared to [his] Foreign Service Officer colleagues; 2. As recently as Janaury 2017, [Complainant] did not receive a performance appraisal while at Post; and 3. As recently, as January 2017, [Complainant was] subjected to a hostile work environment characterized by, but not limited to heightened scrutiny and lack of management support. The Agency dismissed Complainant's complaint. The Agency found that to the extent Complainant was alleging reprisal for reporting fraud, abuse, and waste of government funding, this basis was outside the purview of EEOC regulations and failed to state a claim. The Agency further found that to the extent Complainant was alleging discrimination based on his status as a EFM, this basis is also outside the purview of EEOC regulations and fails to state a claim. The Agency also dismissed Complainant's complaint in its entirety for untimely EEO Counselor contact. The Agency reasoned that "[Complainant's] 45-day period for these allegations began as late as Janaury 31, 2017, and ended as late as March 17, 2017", but Complainant did not initiate EEO Counselor contact until July 28, 2017, outside of the applicable time period. The Agency asserts that Complainant had constructive notice of the applicable time limit based on the posted notices of the EEO process on its internet and intranet site. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's final decision dismissing his complaint. Complainant states that he did not receive any training prior to starting his position in Kazakhstan and that he was unaware of any EEO office at his work location. Complainant asserts that, during his employment, he voiced his concerns regarding inequality in pay to the Human Resource Office and the Front Office but was not provided with information on the EEO process. He also asserts that since his departure from his position, he does not have the same level of access to the Agency's intranet site. Finally, Complainant asserts upon his return to the United States, he contacted the Agency's Family Liaison Office and the Ombudsman Office but that he was turned away and not referred to the Agency's EEO Office. ANALYSIS AND FINDINGS We find that to the extent Complainant was alleging reprisal for reporting abuse, waste and fraud of government funding, the Agency properly dismissed this matter for failure to state a claim. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO complaint process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (Feb. 13, 1989). However, to the extent Complainant is alleging reprisal for opposing alleged discriminatory practices, he has engaged in protected activity and has stated an actionable claim.3 We further find that the Agency properly dismissed the basis of Complainant's status as an EFM for failure to state a claim. EFM status is a basis outside the jurisdiction of EEOC regulations. However, we find that the Agency improperly dismissed Complainant's complaint on the grounds of 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. Given the specific circumstances of this case, we do not find that Complainant had actual or constructive notice of the time limit for initiating EEO contact. The record is devoid of evidence that Complainant was provided with EEO training which covered the applicable time limit. In addition, the record is devoid of evidence that there were EEO posters on display at his facility in Kazakhstan. Finally, we acknowledge that the record contains printouts of EEO information which the Agency, in its final decision, asserts are posted on its internet and intranet sites. However, the record does not contain a sworn statement or affidavit from an Agency official indicating that the EEO notices were easily accessible to Complainant during the time period in question. For example, there is no affidavit that these EEO materials were posted on the Agency's website during the period at issue and, if posted on its website, how easily accessible the materials were to Complainant. Based on the foregoing and the specific circumstances of this case, we waive the applicable time limit. Accordingly, we AFFIRM the Agency's dismissal of the bases of EFM status and reprisal for reporting, fraud, abuse and waste with respect to government funding. However, we reverse the Agency's dismissal of the remainder of his complaint (this includes the bases of sex, age, disability, and reprisal for opposing alleged discriminatory practices) and we REMAND these matters 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. 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 acknowledgement 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 March 30, 2018 __________________ 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 Complainant was employed in this position as an Eligible Family Member (EFM). EFMs are relatives of current Embassy employees. 3 Complainant, in his statement on appeal, asserts that he voiced his concerns regarding inequality in pay to the Human Resource Office and Front Office during his employment. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180757 6 0120180757