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.
Employment Complaints Are Us 