Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency. Appeal No. 0120141282 Agency No. HS-CIS-01805-2013 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated December 17, 2013, dismissing her 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. For the following reasons, the Commission REVERSES the Agency's final decision. BACKGROUND On November 13, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (Haitian), and color (black) when: On April 29, 2013, Complainant was not selected for the position of Operations Support Specialist, GS-0303-07, under vacancy announcement 851891- in West Palm Beach, Florida. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined Complainant initiated EEO Counselor contact on July 17, 2013, but that the alleged discriminatory events occurred on April 29, 2013. Specifically, the Agency noted that Complainant was notified by management of her nonselection for the position of Operations Support Specialist on April 29, 2013, April 30, 2013, and May 9, 2013. The Agency noted that when asked to provide justification for not contacting the EEO Office within 45 days of the alleged incident, Complainant responded that she did not consider the notification of nonselection from management proper notification. On appeal, Complainant acknowledges that on April 29, 2013, she received verbal telephonic notification by the Field Office Director (FOD) that she was not selected for the position of Operations Support Specialist. Complainant claims that at that time, the candidate selected by the FOD was not identified, nor was the sex or race of the Selectee provided. She claims that at the time she was informed of her nonselection, the District Office had failed to certify the selection of the candidate, had not received acknowledgment and acceptance by the candidate, and had not closed the position through an official personnel action. Complainant states that she did not receive any information that the position had been certified or that a candidate had been selected until July 14, 2013. Complainant noted that on July 14, 2013, the Selectee entered on duty as the Operations Support Specialist. Complainant states she received official notice from the Office of Personnel Management via electronic mail on August 13, 2013. Complainant contends that the only alleged discriminatory act that occurred on April 29, 2013, was the failure of the FOD to recommend her for the position at issue and not the personnel action which deprived her of employment. Thus, Complainant claims she did not reasonably know the discriminatory action occurred prior to July 14, 2013. Moreover, Complainant argues that the Agency failed to provide her notice of the time limits for initiating an EEO complaint. 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 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. A "reasonable suspicion" standard (as opposed to a "supportive facts" standard) is applied to determine when the 45 day limitation period is triggered. See Howard v. Depar't of the Navy, EEOC Request No. 05970852 (February 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. The Agency or the Commission shall extend the 45-day time limit 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, and that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits. 29 C.F.R. § 1614.105(a)(2). The Agency has the burden of producing sufficient evidence to support its contention that it fulfilled its statutory duty of conspicuously posting EEO information or otherwise notifying Complainant of his rights. Schrader v. U.S. Postal Serv., EEOC Appeal No. 0120083732 (April 15, 2010). Upon review, we find that the Agency improperly dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, we find that the Agency has not produced sufficient evidence to establish that Complainant had actual or constructive knowledge notice of the time limit for contacting an EEO Counselor. The Agency, for instance, did not provide any evidence in the record that EEO posters or notices were on display in Complainant's work facility. We further note that in the record, the Agency submitted a copy of Complainant's training record from May 2005 to October 2013, which listed the course title, date, and hours of completed training. We find, however, that the record contains no affidavits from management officials asserting that any of the training courses outlined the 45-day time limitation period. Because of our finding, we do not address when Complainant should have had a reasonable suspicion of the alleged discriminatory nonselection. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the Order herein. ORDER (E0610) 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 becomes final. 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 becomes final, 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 (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations November 7, 2014 __________________ Date 2 0120141282 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120141282