U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine S.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120181255 Agency No. DOS003518 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's January 29, 2018, dismissal of 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 At the time of events giving rise to this complaint, Complainant was a former Agency employee, who worked at the Agency's Office of the Inspector General ("OIG") Audits Division in Rosslyn, Virginia. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and color (Black) when: 1. On September 20, 2017, he was not selected for a position serving overseas, 2. On July 24, 2017, he was not selected for a position as a Supervisory Auditor, 3. On March 20, 2017, he was not selected for a position as a Supervisory Auditor, 4. On or about February 6, 2017, his request to serve as Auditor in Charge for two projects was denied, 5. On January 23, 2017, he was not selected for a promotion, 6. On September 19, 2016, he was not selected for a promotion, 7. On or about August 17, 2016, his request for performance feedback on a project was denied, 8. On April 6, 2016, he was not selected for a promotion, and 9. On October 8, 2015, he was not selected for a promotion. The Agency dismissed Complainant's complaint for untimely filing, under 29 C.F.R. § 1614.107(a)(2), and alternately dismissed Claims 2 through 7 for untimely contact with an EEO Counselor, also under 29 C.F.R. § 1614.107(a)(2). The Agency further determined that Claims 4 and 7 could also be dismissed for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. §1614.107(a)(2), an 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), which provides that the limitation period is subject to waiver, estoppel, and equitable tolling. 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." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). We note that in the instant case, the Agency provided sufficient evidence that Complainant received training and is deemed aware of the applicable time frames. Timeliness - Formal Complaint EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within 15 calendar days after the date of receipt of the Notice of Right to File an Individual Complaint ("Notice") required by 29 C.F.R. §1614.105(d), (e), or (f). In instances of untimely filing, the Agency must demonstrate that the complainant received Notice, and that the Notice clearly informed the complainant of the 15-day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995). Here, Complainant signed the Notice of Right to File on November 14, 2017, triggering the filing window. The Agency also provides instructions (Form DS-3080) that it states were enclosed with the Notice, and included bold, centrally located language explaining the importance of filing within 15 days. The Agency contends that Complainant failed to file his formal complaint until December 14, 2017, beyond the 15-day limitation period. However, Complainant provides evidence that he submitted a completed "Notice of Right to File a Discrimination Complaint" (Form DS-5081) on November 14, 2017. We note that the Form DS-5081 includes an area for Complainant to describe the alleged discrimination, which he did, and referenced his original complaint, which he attached. Complainant contends that that he was unaware of an additional Formal Complaint Form (DS-3079) until his EEO Counselor inquired about it by email on December 14, 2017. Complainant requested a copy, completed and submitted the form the same day, and provided the same information he previously provided to the Agency on November 14, 2017. After examination of the Form DS-5081 which Complainant submitted within the 15-day limitation period, we construe it as Complainant's good faith attempt to submit his formal complaint. The form contains both a narrative description of his complaint, as well as check boxes indicating the bases of the alleged discrimination. We find the design of the form, which requests detailed information about the claims of discrimination, created reasonable confusion about the need to submit an additional formal complaint form. Furthermore, there is no evidence that the formal complaint form (DS-3079) was included in the information sent to Complainant, and the record shows that he promptly completed and submitted the DS-3079 as soon as he was made aware of it. Accordingly, we find the Agency erred in dismissing the complaint as untimely filed. Timeliness - EEO Counselor Contact Under 29 C.F.R. § 1614.105(a)(1) complaints of discrimination must be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. Claims 1, 2, 3, 5, 6, 8 and 9 all concern hiring and promotions, which are personnel actions. Of these alleged discriminatory personnel actions, only Claim 1 identifies a personnel action with an effective date that falls within the 45-day window to raise a claim with an EEO Counselor. Specifically, Complainant's September 20, 2017 non-selection for a position overseas fell within 40 days of October 18, 2017, his initial contact date with an EEO Counselor. The remaining claims were properly dismissed for untimely contact with an EEO Counselor. Claims 4 and 7 are not personnel actions, and the alleged discriminatory acts in both claims occurred well outside the 45-limitation period for EEO Counselor contact. However, the Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Complainant's appellate argument for Claims 4 and 7 stating a claim, along with the timing of his other allegations of discrimination, demonstrate that reasonable suspicion for these claims existed over 45 days prior to Complainant's initial EEO contact. Specifically, Complainant argues that Claims 4 and 7 give context to his nonselection allegations because they represented instances where Management denied him the necessary "feedback about performance to meet the unspoken imposed requirements to be promoted or receive consideration for other job requirements." Complainant then clarifies that the "unspoken imposed requirements" he sought to overcome were based on his membership in protected classes. At this point, Complainant alleges that he already had been denied multiple promotions despite seniority and experience, and notes that that no other black African-American men hold supervisory positions within his division. We find this sufficient to indicate reasonable suspicion existed at the time of the alleged discriminatory actions in Claims 4 and 7, making them untimely. Therefore, the Agency properly found Claims 2 through 9 untimely based on Complainant's initial EEO Contact occurring over 45 days after the alleged discriminatory acts. Failure to State a Claim As we have found Claims 4 and 7 untimely, we decline to analyze the Agency's alternate grounds for dismissal, failure to state a claim. CONCLUSION Accordingly, the Agency's dismissal of Claims 2 through 9 is AFFIRMED, and the Agency's dismissal of Claim 1 is REVERSED. Claim 1 is hereby REMANDED to the Agency for further processing in accordance with this Decision and the Order below. ORDER (E1016) The Agency is ordered to process the remanded claim (Claim 1) 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 (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 May 17, 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 0120181255 7 0120181255 8 0120181255