EEOC Appeal 2020000824

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Audrea L., 1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000824
Agency No. ARUSASAC19APR01520
DECISION
Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's August 26, 2019 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment
with the Agency’s Office of the Program Manager- Saudi Arabian National Guard (“OPM-
SANG”) in Riyadh, Saudi Arabia.
On August 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of sex (female) and reprisal (spouse’s EEO complaint) when:
a. 	On November 12, 2018, she received an email notification of non-selection for the
position of Recreation Assistant (“RA”), T1G/GS-0189-4/5 6/7, located at OPM-
SANG 	in 	Eskan 	Village, 	Saudi 	Arabia 	(Vacancy 	Announcement 	No.
CPAC18678579) and,
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.

2020000824	2
b. 	On an unspecified date, the responding management official (“RMO”) touched and
grabbed her in an inappropriate manner and further attempted to kiss her in the
ECC, in front of her husband.
On October 7, 2018, Complainant applied for the RA position. She was on the “spousal preference
list” because her husband was a Logistics Management Specialist assigned to OPM-SANG.
According to the EEO Counselor’s Report, Complainant’s husband had been informed by his
Division Chief that Complainant was the only spouse remaining on the spousal preference list, so
she should get the next job she applied to. Complainant’s status as a “DoD civilian spouse” was
included prominently next to her name on the list of best qualified candidates for the RA position.
On October 29, 2018, Complainant was interviewed by a panel for the RA position. On November
12, 2018, she was notified by email that she was not selected. The Selecting Official (“SO”),
explained that he initially did not select Complainant because of the panel’s feedback about her
interview performance. After Complainant’s husband contacted HR and SO’s office regarding
violations of the spousal hiring policy, 2 and alleging that some of the interview questions were
overly personal, SO reviewed the records and decided to interview the candidates again.
On November 20, 2018, Complainant was interviewed for a second time, and received positive
feedback. SO’s office called Complainant multiple times to schedule her for a panel interview on
November 26, 2018, but Complainant did not attend. According to the record, Complainant felt
she did not need to attend a third interview because she did so well during the second interview.
On appeal, Complainant clarifies that she did not attend the third interview because her husband
“informed [SO’s] chain of command that this [additional interview] was not in accordance with
[Office of Personnel Management (“OPM”) and Agency] hiring policy.”
HR documentation reflects that on December 10, 2018, the RA position was filled, and that SO
selected one of the candidates that the panel interviewed on November 26, 2018. Yet, on appeal,
Complainant states that she learned that she was not selected on April 11, 2019.
The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact.
ANALYSIS AND FINDINGS
2 Because Complainant repeatedly alleges violations of Agency-specific hiring practices and OPM
policies (e.g. the OPM-SANG Program Policy Letter PL, 01-03, Civilian Hiring Practices on the
Spousal Preference Policy (Nov. 1, 2014), and DOD Instruction Policy No. 1400.23 (May 12,
1989)), we note that enforcement of these policies is outside the scope of the Commission’s
jurisdiction. The proper forum for Complainant to raise her challenges to the denial of her spousal
preference status is within the processes themselves.

2020000824	3
In relevant part, 29 C.F.R. §1614.107(a)(2) states that 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.
Under 29 C.F.R. §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC
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. 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. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499
(Apr. 19, 2012)).
Under 29 C.F.R. §1614.105(a)(2), the agency or the Commission may extend the time limit if
complainant establishes that he or she was not aware of the time limit, did not know and reasonably
should not have known that the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her control from contacting
the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency
or Commission.
The record discloses that the alleged discriminatory events occurred on or prior to November 12,
2018, but Complainant did not initiate contact with an EEO Counselor until March 13, 2019, which
is beyond the forty-five (45) day limitation period.
With respect to Claim A, Complainant appears to argue that reasonable suspicion did not exist at
the time of the alleged discrimination because she did not learn that she was not selected until
April 11, 2019. Reasonable suspicion that Complainant was not the selectee existed well before
then, as the RA position was filled in December 2018. 	The record reflects multiple “email
grievances” submitted by Complainant’s husband to HR and Management in October and
February regarding alleged violation of Agency and OPM hiring policies. Complainant also states
that she believed the position had been “put on hold” until June, even though she had interviewed
for it. 	On appeal, Complainant states that she and her husband “asked for the RA position” in
November, February, March and April, indicating reasonable suspicion existed over 45 days prior
to Complainant raising the matter with an EEO Counselor.
The Agency determined that the alleged harassment in Claim B occurred prior to October 8, 2018,
because Complainant alleged in the record that RMO removed her name from the spousal
preference list on October 8, 2018 as retaliation for her rejecting his advances (the alleged sexual
harassment in Claim B). On appeal, Complainant indicates that her name was taken off the list in
retaliation for her husband’s protected activity, but does not dispute that the alleged harassment
occurred prior to October 8, 2018 or offer any clarification on the date for Claim B. Alternately,
Complainant explains, on appeal, that and she delayed raising the sexual harassment allegation
because she was “terrified” about the potential consequences to her husband’s career if she
reported it. We are not persuaded to waive the limitation period on these grounds. The Commission

2020000824	4
has consistently held that fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO counselor. See Parker v. Dep’t of Veterans Affairs, EEOC
Request No. 05940436 (Feb. 9, 1995).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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. If you file a civil action, you must

2020000824	5
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
August 31, 2020
Date