U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V,1 Complainant, v. Jeff T. H. Pon, Director, Office of Personnel Management, Agency. Appeal No. 0120182188 Agency No. 2018024 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 30, 2018, dismissing a formal 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 applied for various positions with the Agency from September 2017 through November 2017. On January 31, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 1, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, age, and reprisal (for contacting his Senator) when: on or about November 1, 2017,2 Complainant was informed that he was not eligible for the Agency positions for which he applied. On April 30, 2018, the Agency issued the instant final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on January 31, 2018, which it found to be beyond the 45-day limitation period. The instant appeal followed. Complainant, on appeal, argues that he could not find any information on the Agency's website regarding how to contact the Agency's EEO Counselor. Complainant further argues that he was not sure if he was subjected to the 45-day timeframe because he had retired from another federal agency on January 15, 2018 and was not a federal employee when he initiated EEO Counselor contact on January 31, 2018. Complainant acknowledges that during his tenure at the other federal agency, he attended an EEO briefing. However, he asserts that he does not remember any discussion of EEO time-limits requirements, and he does not remember seeing any information posted at the other federal agency regarding EEO requirements. Complainant further explains that he initiated EEO Counselor's contact on January 31, 2018 only after he had conducted personal research and contacted his Senator. 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 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. 29 C.F.R. § 1614.105(a)(2). Where timeliness is an issue, the agency bears the burden of proof of obtaining sufficient information to support a reasoned determination as to whether that time limit was met. 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)). In this case, the Agency dismissed the instant formal complaint for untimely EEO Counselor contact. The Agency found, in pertinent part, that it was not required to extend the 45-day time limit to contact an EEO Counselor because (1) Complainant was a recent federal employee and Complainant's prior federal agency would have provided notice and training to Complainant on EEO Counselor contact requirements; (2) the Agency's job vacancy announcements provided links to the Agency's EEO office and to the Commission's "Federal Employee & Job Applicant's" page outlining the EEO Counselor contact requirements. Here, the alleged discriminatory event occurred on or about November 1, 2017 or November 16, 2017, but Complainant did not initiate contact with an EEO Counselor until January 31, 2018, well beyond the limitation period. Upon review, however, we find that the Agency has not met its burden to demonstrate that Complainant had knowledge of the 45-day timeframe to initiate EEO Counselor contact. First, we find that constructive knowledge of the 45-day limitation period was not established by the Agency, through its mere assumption that Complainant had prior knowledge of the EEO requirements because Complainant was a former federal government employee. The Agency has not provided any evidence to support this assertion. Second, it is not sufficient for the Agency to determine that Complainant had constructive knowledge of the EEO requirements from the EEO website links provided on the Agency's job vacancy announcements. We note that the EEO website links provide information regarding the EEO requirements. However, there is no actual mention of the EEO Counselor contact requirements on the face of the job vacancy announcements themselves. Moreover, there is no indication on the job vacancy announcements that the EEO links contain information pertaining to the EEO Counselor contact requirements. In sum, the Agency has failed to demonstrate that Complainant was notified and was otherwise aware of the 45-day requirement to initiate EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2); see also 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)). The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. 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 (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 (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 12, 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 The EEO Counselor's report indicates that the alleged discriminatory act occurred on November 16, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120182188 6 0120182188