reasonable suspicion standard

A key concept in civil rights regulations is the requirement that a complainant raise concerns about employment conditions or decisions in a timely manner. This permits the agency to quickly address problems before liabilities accrue, and while investigation of the facts may be accomplished. After the passage of time, documents may be destroyed, witnesses may retire or die, and memories may fade.

The EEOC regulation, 29 C.F.R. § 1614.105(a)(1), states that an aggrieved person must initiate contact with 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. Furthermore, 29 C.F.R. § 1614.107(a)(2) indicates that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits. See Delong v. U.S. Postal Service, EEOC Appeal No. 01A41031 (March 3, 2004) and Kelly v. U.S. Postal Service, EEOC Request No. 05A00985 (September 26, 2002).

Here, the Complainant did not contact an EEO Counselor until September 16, 2013, after he was notified for a second time that he was not cleared to wear a SCBA. 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. Department of 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. See McLoughlin v. Department of Treasury, EEOC Request No. 05A01093 (April 24, 2003).

After careful review of the record and his statement, we believe the Complainant should have reasonably suspected the action to be discriminatory well before September 16, 2013. The Complainant has failed to establish what aspect of the August 6, 2013 letter created any more of a reasonable suspicion of discrimination than the initial June 16, 2013 denial of his clearance. See Brown v. Department of Transportation, EEOC Appeal No. 0120110269 (March 30, 2011) (employee’s receipt of documents after Freedom of Information Act request was insufficient to trigger reasonable suspicion of discrimination). A complainant must act with due diligence in pursuit of his claims. See Sieler v. U.S. Postal Service, EEOC Appeal No. 01A32901 (February 10, 2004). Moreover, to the extent that the Complainant requested reconsideration of the initial denial, the EEOC has consistently held that the utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Crutches v. Department of Army, EEOC Appeal No. 0120092790 (September 15, 2009), citing Hosford v. Department of Veteran Affairs, EEOC Request No. 05890038 (June 9, 1989).

Under 29 C.F.R. § 1614.105(a)(2), an agency shall extend the 45-day time limit when the employee shows that he was not notified of the time limit, was not otherwise aware of it, or there existed circumstances beyond the complainant’s control that prevented timely contact with an EEO Counselor.

There is sufficient evidence that the Complainant knew, or reasonably should have known, of the 45-day time limit concerning EEO counseling. Including the subject complaint, the Complainant has been counseled on and filed, whether informally or formally, at least two EEO complaints.[1] Given that his previous complaint included issues related to the terms and conditions of his employment, the Complainant should have reasonably suspected the act alleged in this claim to be discriminatory long before September 16, 2013. Accordingly, no basis for extending the statutory time period exists. This claim is dismissed for untimely EEO Counselor contact. The regulatory basis for this decision is 29 C.F.R. § 1614.107(a)(2).

[1] The Complainant’s prior matter was complaint number APHIS-2012-00000.

Charles L. Andros,
Complainant,

Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120122122

Agency No. HS-TSA-21492-2012

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 22, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Transportation Security Officer at the Atlantic City International Airport in New Jersey. On January 6, 2012, Complainant filed a formal complaint claiming that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected EEO activity.

In its March 22, 2012 final decision, the Agency determined that Complainant's formal complaint was comprised of the following claims:

Whether the Agency subjected Complainant to a hostile work environment when:

1) On July 9, 2011, he received a letter from management containing a threat of disciplinary action regarding actions he took while serving in his capacity as a member of the Employee Advisory Council (EAC).

2) On unspecified dates, he received low annual job assessment scores.
3) On an unspecified date,1 he was "forced to resign" from his collateral duty EAC position.

4) On unspecified dates, the Office of Civil Rights and Liberties (OCRL) attempted to "intimidate" Complainant and "cover up" his allegation that a Transportation Security Manager threatened him.

The Agency dismissed Complainant's formal complaint. The Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. The Agency found that the alleged incident occurred on July 9, 2011, but that Complainant did not initiate EEO Counselor contact until November 2, 2011, outside of the applicable time limit.

The Agency dismissed claims (2)-(4) for failure to raise these matters with an EEO Counselor found that these matters are not like or related to a matter that has been brought to the attention of an EEO Counselor. Specifically, the Agency stated "[a] review of the record shows that Complainant first raised the issues involving his job assessment scores, his resignation from his collateral duty EAC position, and the alleged OCRL cover up in...the formal complaint. The record is devoid of evidence that Complainant previously raised these matters with an EEO Counselor. Furthermore, the EEO Counselor's Report failed to allege he was subjected to a hostile work environment."

The Agency dismissed claim (4) on the alternate grounds that the matter constituted a spin-off complaint.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that the Agency's final decision dismissing his complaint is improper. Complainant asserts that he timely initiated EEO Counselor contact.

ANALYSIS AND FINDINGS

Claim (4)-OCRL's Cover Up

The Agency properly dismissed claim (4) because this matter constitutes a spin-off complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(8) sets forth that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. EEOC Management Directive (MD-110), Chapter 5 (Nov. 9, 1999) defines such a complaint as a "spin-off" complaint.

In the instant matter, Complainant is alleging that OCRL did not properly address his claim involving a threat from an Agency manager when it failed to include it as a claim in a prior EEO Case, Agency Case No. HS-TSA-18173-2010. The record contains a copy of a memorandum from Complainant to OCRL dated December 5, 2011. Therein, Complainant asserts that he had requested that his claim involving a threat from an Agency Manager be included with Agency Case No. HS-TSA-18173-2010; however, the Agency failed to do so. Complainant, in this letter, further asserts that OCRL failed to even acknowledge this claim and thus is engaging in a "cover up." Based on the above standard, the Commission agrees that the instant complaint is a "spin-off" claim and is therefore properly dismissed.2

Claim (1)-Letter Threatening Disciplinary Action

The Agency improperly dismissed claim (1) 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. Department 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.

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.

The Agency erred when it found that Complainant did not initiate EEO Counselor contact regarding this matter until November 2, 2011. The record contains a copy of a memorandum from Complainant to the OCRL dated August 19, 2011. Therein, Complainant states that he is requesting that additional matters be included with a prior EEO case, Agency Case No. HS-TSA-18173-2010. Complainant, in the August 19, 2011 memorandum to OCRL, makes reference to the letter which threatened disciplinary action and that he was forced to resign from his position with EAC. In addition, Complainant asserts that he is being harassed in this memorandum. On appeal, Complainant submits documentation reflecting that he sent this memorandum to OCRL via certified mail on August 19, 2011, and that the Agency received it on August 23, 2011. We further note that Complainant's August 19, 2011 memorandum was included as an attachment in the EEO Counselor's Report; however, the Agency failed to address Complainant's memorandum in its final agency decision. Based on the foregoing, we find that Complainant initiated EEO Counselor contact on August 19, 2011, which was within the 45 days of the alleged discriminatory event set forth in claim (1).

Claims (2)- and (3)

The Agency improperly dismissed claims (2) and (3) for failure to raise these matters with an EEO Counselor or for not being like or related to matters raised with an EEO Counselor. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).

The record reflects that Complainant raised claim (3), being forced to resign from the EAC, in his August 19, 2011 letter to the OCRL, as set forth above. This letter was also included as an attachment in the EEO Counselor's Report and, as set forth above, we find the August 19, 2011 letter constitutes Complainant's initial EEO Counselor contact. Thus, we find that Complainant raised this matter with an EEO Counselor.

Regarding claim (2), low job assessment scores, we find that this matter is like or related to matters raised during EEO Counseling. Complainant, in his August 19, 2011 letter to OCRL, asserts that he is being harassed. We find that claim (2) is an incident encompassed within Complainant's hostile work environment claim.

CONCLUSION

Accordingly, we AFFIRM the Agency's dismissal of claim (4).3 However, we REVERSE the Agency's dismissal of the remainder of Complainant's complaint, defined herein as a hostile work environment claim, and we REMAND this matter for further processing in accordance with the ORDER below.

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 (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 (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

September 13, 2012
Date

1 The record contains a memorandum from Complainant dated July 16, 2011, in which he resigned from his EAC position.

2 Commission records reflect that Agency Case No. HS-TSA-18173-2010 is currently before an EEOC Administrative Judge (AJ). MD-110 provides, in pertinent part, that in cases where a complainant's concerns have not been resolved informally with the agency, Complainant may present those concerns to an AJ when Complainant has requested a hearing. MD-110, Chapter 5, IV(D).

3 Because we affirm the Agency's dismissal of claim (4) for the reason stated herein, we need not address the Agency's alternate grounds of dismissal for claim (4).
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2
0120122122

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

2
0120122122

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Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)

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