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0	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53853.txt	01a53853.txt	TXT	text/plain	14,292	Randy Mack v. Department of the Army 01A53853 August 16, 2005 . Randy Mack, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.	August 16, 2005	Appeal Number: 01A53853 Complaint Allegations: In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when after voluntarily transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort Jackson, South Carolina, complainant's pay rate was reduced from $22.64 per hour to $17.24 per hour, although he was performing the same work at Fort Jackson that he had previously performed for $22.64 an hour at Cherry Point. Complainant alleged that on November 2, 2004, he learned that a Caucasian male in Plumber Maintenance at Fort Jackson had also accepted a voluntary transfer from Cherry Point and did not have his pay reduced. In its decision dismissing the complaint, the agency indicated that complainant became aware of the difference in pay on November 2, 2004, but did not express his intent to pursue the EEO process until February 24, 2005. Case Facts: Complainant filed an appeal with this Commission from the April 14, 2005 agency decision dismissing his complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor in a timely manner. In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when after voluntarily transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort Jackson, South Carolina, complainant's pay rate was reduced from $22.64 per hour to $17.24 per hour, although he was performing the same work at Fort Jackson that he had previously performed for $22.64 an hour at Cherry Point. Complainant alleged that on November 2, 2004, he learned that a Caucasian male in Plumber Maintenance at Fort Jackson had also accepted a voluntary transfer from Cherry Point and did not have his pay reduced. In its decision dismissing the complaint, the agency indicated that complainant became aware of the difference in pay on November 2, 2004, but did not express his intent to pursue the EEO process until February 24, 2005. The record reveals that the alleged discriminatory pay rate reduction occurred on October 31, 2004. The record reveals further that complainant met with an EEO Counselor on December 9, 2004, concerning his rate of pay. The record also contains an agency EEO form Memorandum, dated December 9, 2004, in which complainant checked off item "c" on the form. Item "c" stated that complainant was deferring his decision "to pursue my matter" until a later date. Item "c" also stated that complainant had been informed and understood that he had 45 calendar days from the date of the alleged discrimination or the date that he became aware of the discrimination process to file an EEO complaint. The Memorandum also indicated that the EEO complaint and mediation processes were explained to complainant. The record reveals that complainant signed the Memorandum. The record contains electronic mail messages which reflect that the EEO Counselor was in communication with the Civilian Personnel Advisory Center (CPAC) regarding complainant's rate of pay. A handwritten note appearing next to a January 5, 2005 electronic mail message states that the EEO Counselor had updated complainant on January 12. A January 13, 2005 electronic mail from the CPAC Director to agency personnel states that complainant's official personnel matter was needed regarding an "EEO issue." The record also contains an electronic mail message, also dated January 13, 2005, to the EEO Counselor from the CPAC Director in which the CPAC Director stated that the "CPOC" still had not received complainant's official personnel folder. A February 2, 2005 electronic mail message from the CPAC Director reflects that the CPAC Director met with complainant on February 2, 2005, and that after the CPAC Director explained to complainant that his pay was correct, complainant stated to her that he had a better understanding of his concerns. The February 2, 2005 electronic mail message reflects that the EEO Counselor was sent a copy. A handwritten note, dated February 3, 2005, which was written by the EEO Counselor on a copy of an electronic mail message, reflects that complainant called the EEO Counselor on February 3, 2005. The handwritten note states that complainant would not pursue the matter and that he regretted that his co-worker may have been overpaid and might have to re-pay the overpayment. The record also contains complainant's affidavit, dated May 31, 2005. Complainant stated in his affidavit that upon learning of the pay difference, he contacted an EEO Counselor with the intention of beginning the EEO process and that he believed that he had complied with the first step of the EEO process by contacting an EEO Counselor. Complainant also stated that in the December 9, 2004 meeting with the EEO Counselor, the EEO Counselor informed complainant that complainant would receive other information concerning his claim as soon as the EEO Counselor returned to work from having surgery and that there would be no problem with any filing deadlines. Complainant further stated in his affidavit that he believed that he was misled by the EEO Counselor about the procedure for filing a formal complaint and that the form he signed on December 9, 2004, did not explain to him how to file a formal EEO complaint nor did the EEO Counselor explain to him how to file a formal complaint. The record contains the June 30, 2005 affidavit of the EEO Counselor. The affidavit reveals that the EEO Counselor met with complainant on December 9, 2004, regarding complainant's rate of pay and that the EEO Counselor determined that the purpose of the meeting was that complainant was seeking information on the EEO process. The affidavit also reveals that the EEO Counselor explained the informal and formal stages of the EEO complaint process to complainant and "emphasized" the 45-day time limit for filing a complaint. The EEO Counselor stated in the affidavit that he emphasized to complainant that complainant had not initiated an informal EEO complaint and at the time, complainant only expressed his desire to obtain a satisfactory answer from CPAC without filing a complaint. The EEO Counselor stated that complainant informed him that complainant had previous discussions with CPAC personnel regarding his pay rate and he wanted to give them a chance to respond before he took any actions. The EEO Counselor stated that although he told complainant that he would be away from the office on sick leave, he did not tell complainant that he would contact him. The EEO Counselor stated that he told complainant to contact Counselor B, an EEO Specialist, if he changed his mind and wanted to file an informal complaint. The EEO Counselor further stated that he was on sick leave from December 13, 2004, until January 10, 2005. The EEO Counselor stated that because of his desire to assist complainant in obtaining answers, he asked for and obtained complainant's permission to contact CPAC personnel on his behalf. The EEO Counselor also stated that he was sure that complainant understood that his offer to assist him was not his initiation of an informal complaint. In his affidavit, the EEO Counselor stated further that the CPAC Director informed him that she had met with complainant on February 2, 2005, and provided complainant with an explanation regarding his pay and complainant told her that he understood. The EEO Counselor also stated that complainant called him on February 3, 2005, to say that he had accepted the CPAC's explanation and that he would not pursue an EEO complaint. The EEO Counselor further stated that on February 24, 2005, complainant contacted him and expressed his desire for the first time to proceed with an EEO complaint and that on February 28, 2005, he assigned another EEO Counselor to counsel complainant. In his affidavit, the EEO Counselor stated that at no time did he lead complainant to believe that complainant should not be concerned with timeliness nor did he tell complainant that he would respond to him in writing about his EEO complaint. The EEO Counselor also stated that he never discouraged complainant from filing an EEO complaint. Legal Analysis: 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 also provide that the agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). The Commission has also consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Upon review, the Commission finds that the agency's dismissal was proper. We find that when complainant contacted the EEO Counselor on December 9, 2004, complainant did not demonstrate an intent to commence the EEO process. The first date the record persuasively shows that complainant contacted an EEO Counselor with the intent to commence the EEO process was on February 24, 2005, which was beyond the 45-day time limit. We note that complainant agreed on December 9, 2004, to defer his decision to pursue the matter until a later date. The form completed by complainant on December 9, 2004, specifically notes a 45-day time limit. Even if complainant was confused, as he claims, and thought the 45-day time limit commenced on December 9, 2004, he still failed to make such contact within 45 days of December 9, 2004. Final Decision: Accordingly, the agency's dismissal of the complaint is AFFIRMED.	Randy Mack v. Department of the Army 01A53853 August 16, 2005 . Randy Mack, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency. Appeal No. 01A53853 Agency No. ARJACKSON04DEC08397 DECISION Complainant filed an appeal with this Commission from the April 14, 2005 agency decision dismissing his complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor in a timely manner. In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when after voluntarily transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort Jackson, South Carolina, complainant's pay rate was reduced from $22.64 per hour to $17.24 per hour, although he was performing the same work at Fort Jackson that he had previously performed for $22.64 an hour at Cherry Point. Complainant alleged that on November 2, 2004, he learned that a Caucasian male in Plumber Maintenance at Fort Jackson had also accepted a voluntary transfer from Cherry Point and did not have his pay reduced. In its decision dismissing the complaint, the agency indicated that complainant became aware of the difference in pay on November 2, 2004, but did not express his intent to pursue the EEO process until February 24, 2005. The record reveals that the alleged discriminatory pay rate reduction occurred on October 31, 2004. The record reveals further that complainant met with an EEO Counselor on December 9, 2004, concerning his rate of pay. The record also contains an agency EEO form Memorandum, dated December 9, 2004, in which complainant checked off item "c" on the form. Item "c" stated that complainant was deferring his decision "to pursue my matter" until a later date. Item "c" also stated that complainant had been informed and understood that he had 45 calendar days from the date of the alleged discrimination or the date that he became aware of the discrimination process to file an EEO complaint. The Memorandum also indicated that the EEO complaint and mediation processes were explained to complainant. The record reveals that complainant signed the Memorandum. The record contains electronic mail messages which reflect that the EEO Counselor was in communication with the Civilian Personnel Advisory Center (CPAC) regarding complainant's rate of pay. A handwritten note appearing next to a January 5, 2005 electronic mail message states that the EEO Counselor had updated complainant on January 12. A January 13, 2005 electronic mail from the CPAC Director to agency personnel states that complainant's official personnel matter was needed regarding an "EEO issue." The record also contains an electronic mail message, also dated January 13, 2005, to the EEO Counselor from the CPAC Director in which the CPAC Director stated that the "CPOC" still had not received complainant's official personnel folder. A February 2, 2005 electronic mail message from the CPAC Director reflects that the CPAC Director met with complainant on February 2, 2005, and that after the CPAC Director explained to complainant that his pay was correct, complainant stated to her that he had a better understanding of his concerns. The February 2, 2005 electronic mail message reflects that the EEO Counselor was sent a copy. A handwritten note, dated February 3, 2005, which was written by the EEO Counselor on a copy of an electronic mail message, reflects that complainant called the EEO Counselor on February 3, 2005. The handwritten note states that complainant would not pursue the matter and that he regretted that his co-worker may have been overpaid and might have to re-pay the overpayment. The record also contains complainant's affidavit, dated May 31, 2005. Complainant stated in his affidavit that upon learning of the pay difference, he contacted an EEO Counselor with the intention of beginning the EEO process and that he believed that he had complied with the first step of the EEO process by contacting an EEO Counselor. Complainant also stated that in the December 9, 2004 meeting with the EEO Counselor, the EEO Counselor informed complainant that complainant would receive other information concerning his claim as soon as the EEO Counselor returned to work from having surgery and that there would be no problem with any filing deadlines. Complainant further stated in his affidavit that he believed that he was misled by the EEO Counselor about the procedure for filing a formal complaint and that the form he signed on December 9, 2004, did not explain to him how to file a formal EEO complaint nor did the EEO Counselor explain to him how to file a formal complaint. The record contains the June 30, 2005 affidavit of the EEO Counselor. The affidavit reveals that the EEO Counselor met with complainant on December 9, 2004, regarding complainant's rate of pay and that the EEO Counselor determined that the purpose of the meeting was that complainant was seeking information on the EEO process. The affidavit also reveals that the EEO Counselor explained the informal and formal stages of the EEO complaint process to complainant and "emphasized" the 45-day time limit for filing a complaint. The EEO Counselor stated in the affidavit that he emphasized to complainant that complainant had not initiated an informal EEO complaint and at the time, complainant only expressed his desire to obtain a satisfactory answer from CPAC without filing a complaint. The EEO Counselor stated that complainant informed him that complainant had previous discussions with CPAC personnel regarding his pay rate and he wanted to give them a chance to respond before he took any actions. The EEO Counselor stated that although he told complainant that he would be away from the office on sick leave, he did not tell complainant that he would contact him. The EEO Counselor stated that he told complainant to contact Counselor B, an EEO Specialist, if he changed his mind and wanted to file an informal complaint. The EEO Counselor further stated that he was on sick leave from December 13, 2004, until January 10, 2005. The EEO Counselor stated that because of his desire to assist complainant in obtaining answers, he asked for and obtained complainant's permission to contact CPAC personnel on his behalf. The EEO Counselor also stated that he was sure that complainant understood that his offer to assist him was not his initiation of an informal complaint. In his affidavit, the EEO Counselor stated further that the CPAC Director informed him that she had met with complainant on February 2, 2005, and provided complainant with an explanation regarding his pay and complainant told her that he understood. The EEO Counselor also stated that complainant called him on February 3, 2005, to say that he had accepted the CPAC's explanation and that he would not pursue an EEO complaint. The EEO Counselor further stated that on February 24, 2005, complainant contacted him and expressed his desire for the first time to proceed with an EEO complaint and that on February 28, 2005, he assigned another EEO Counselor to counsel complainant. In his affidavit, the EEO Counselor stated that at no time did he lead complainant to believe that complainant should not be concerned with timeliness nor did he tell complainant that he would respond to him in writing about his EEO complaint. The EEO Counselor also stated that he never discouraged complainant from filing an EEO complaint. 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 also provide that the agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). The Commission has also consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Upon review, the Commission finds that the agency's dismissal was proper. We find that when complainant contacted the EEO Counselor on December 9, 2004, complainant did not demonstrate an intent to commence the EEO process. The first date the record persuasively shows that complainant contacted an EEO Counselor with the intent to commence the EEO process was on February 24, 2005, which was beyond the 45-day time limit. We note that complainant agreed on December 9, 2004, to defer his decision to pursue the matter until a later date. The form completed by complainant on December 9, 2004, specifically notes a 45-day time limit. Even if complainant was confused, as he claims, and thought the 45-day time limit commenced on December 9, 2004, he still failed to make such contact within 45 days of December 9, 2004. Accordingly, the agency's dismissal of the complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 August 16, 2005 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)", "29 C.F.R. § 1614.107(a)", "29 C.F.R...	[ -0.04757063090801239, 0.04877230525016785, 0.00878120306879282, 0.06979085505008698, -0.008883798494935036, -0.0007873421418480575, 0.011349136009812355, 0.009545650333166122, -0.054289329797029495, -0.002256119856610894, 0.006861275061964989, -0.07647523283958435, 0.03163089603185654, -0....
1	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181186.pdf	0120181186.pdf	PDF	application/pdf	24,235	Damaris M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.	December 11, 2017	Appeal Number: 0120181186 Background: During the period at issue, Complainant worked as a Customer Services, EAS -17, at the Agency’s Fleetwood Station in Houston, Texas. On February 22, 2017, Complainant filed a formal EEO complaint . As summarized by the Agency, Complainant claimed that the Agency discriminated against her based on sex (fe male) and in reprisal for prior protected EEO activity when: 1. on unspecified dates, Complainant was sexually harassed by an EEO ADR Specialist (“EEO Specialist”) when the EEO Specialist asked her to call him, to send him pictures, to visit him at work, and when he hugged her and pressed his erection against her; and 2. on December 6, 2016, Complainant was not paid when she was required to attend an investigative interview. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice. On December 11, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b) , finding no discrimination. The instant appeal followed. On appeal, Complainant ar gues that the Agency failed to investigate her “80 incidents/complaints of retaliation, discrimination, sexual harassment, being black balled, being falsely accused three times of Claimant Fraud and Obstruction of Medical, slander and libel against her.” Complainant argues that the Agency improperly reduced her formal complaint to the two incidents at issue.	Damaris M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120181186 Agency No. 6X000000517 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 11, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 worked as a Customer Services, EAS -17, at the Agency’s Fleetwood Station in Houston, Texas. On February 22, 2017, Complainant filed a formal EEO complaint . As summarized by the Agency, Complainant claimed that the Agency discriminated against her based on sex (fe male) and in reprisal for prior protected EEO activity when: 1. on unspecified dates, Complainant was sexually harassed by an EEO ADR Specialist (“EEO Specialist”) when the EEO Specialist asked her to call him, to send him pictures, to visit him at work, and when he hugged her and pressed his erection against her; and 2. on December 6, 2016, Complainant was not paid when she was required to attend an investigative interview. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice. On December 11, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b) , finding no discrimination. The instant appeal followed. On appeal, Complainant ar gues that the Agency failed to investigate her “80 incidents/complaints of retaliation, discrimination, sexual harassment, being black balled, being falsely accused three times of Claimant Fraud and Obstruction of Medical, slander and libel against her.” Complainant argues that the Agency improperly reduced her formal complaint to the two incidents at issue. ANALYSIS AND FINDINGS Preliminary Matter – Claims at Issue As an initial matter, we address Complainant’ s argument that the Agency failed to investigate all 80 incidents she included in her formal complaint. Our review of the record indicates that the Agency notified Complainant, by a May 12, 2017 Acceptance for Investigation letter, that her formal complaint included “extensive background information referencing incidents that occurred beginning in 2001 and continuing to the current date.” The letter further informed Complainant that she had “file d 23 additional EEO complaints from 2001 through 2016,” and that information she provided in her formal complaint representing claims that have already been processed as part of her 23 prior EEO complaint would only be considered as background information. Additionally, the letter also provided Complainant the opportunity to submit a written response within 7 days of receipt of the May 12, 2017 letter if she did not agree with the defined accepted issues. The record does not indicate that Complainant submitted a response. Therefore, we find that the Agency properly defined the accepted claims at issue. Disparate Treatment: Claim 2 A claim of disparate treatment is examined under the three -part analysis first enunciated in McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973). For complainant to prevail, she 2 The Agency initially determined that claim 1 was untimely raised with an EEO Counselor, and therefore could be dismissed, p ursuant to 29 C.F.R. § 1614.107(a)(2) . However, for the sake of argument that the matters was timely raised , the Agency addressed this claim on the merits , which will be the focus of our analysis. must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine , 450 U .S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Cent er v. Hicks , 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens , 460 U.S. 711, 713- 714 (1983); Hernandez v. Department of Transportation , EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department o f Health and Human Services , EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy , EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for not paying Complainant on December 6, 2016. Complainant’s supervisor (“S1”) stated that at the time of the investigative interview, Complainant was on injury compensation and she would not be able to be paid in addition to being on compensation. The EEO Compliance and Appeals Manager (“M1”) testified that Complainant was not required to attend the December 6, 2016 investigative interview . Instead, M1 stated that he encouraged Complainant to “cooperate with the inquiry.” M1 stated that he believed that the investigative interview lasted 2 ½ to 3 hours. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex and reprisal for prior protected EEO activity . Sexual Harassment: Claim 1 To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) s he belongs to a protected class; (2) s he was subjected to unwelcome sexual advances, requests for sexual fav ors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimida ting, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv. , EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from t he objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993); Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc. , EEOC Notice No. 915.002 (Mar. 8, 1994). Here, we agree with the Agency’s determination that the record fails to support that Complainant was subjected to sexual harassment. Complainant stated that the EEO Specialist requested that she call him, send him pictu res, and visit him at work. Complainant did not specify when the EEO Specialist allegedly made these request and Complainant indicated that she never asked the EEO Specialist to refrain from making these requests. Regarding requests for calls, Complainant testified that the EEO Specialist wanted her to call him for various reasons including the following : to come by his office; to inform him when she was at the District Office; to celebrate her promotion and non- promotion; to discuss other EEO complaints; to request hugs; and because she “owed him.” Regarding the requests for pictures, Complainant stated that the EEO Specialist would request a “new” picture or say that she “owe[d]” him and she “did not know his reas on for wanting pictures of [her] except for the fact [she] inferred he was trying to have a sexual relationship with [her] that was unwarranted and unwanted.” Complainant explained that she sent “selfie face pictures” to the EEO Specialist and she re quested that he send her pictures only because he asked her for pictures. Regarding the office visit requests, Complainant explained that the EEO Specialist wanted her to come by the District office “JUST TO SEE HIM” but she would only go to the District Office if she was on official business (emphasis in original) . Complainant further explained that the EEO Specialist would stand around in the hallways looking for her when she would inform him, per his request, that she was in the building. Regarding the request for hugs, Complainant stated that the EEO Specialist hugged her in his office. 3 Complainant further stated that during the hug, the EEO Specialist “became se xually aroused and his private parts were pressed against [her] body.” Complainant explained that the hug was initiated by the EEO Specialist. B ecause the EEO Specialist had the door close d, there were no witnesses to the incident. Complainant stated tha t she was “shocked,” “afraid,” and “scared” because the incident reminded her of what “[another manager] did to [her] in his office with the door shut in 2001.” 4 Complainant further stated that she “may not have shown any 3 Complainant does not specify in her affidavit when this alleged incident occurred. 4 Complainant stated that another manager allegedly “sexually assaulted [her] in his office ” in 2001. reaction at the time,” but the EEO Specialist’s conduct was “unwelcomed,” “undesirable and offensive ” and “she felt sick.” Complainant indicated that she notified “ treating physicians, friends, co- workers, doctors, psychologists, and psychiatrists” about the incident but did not specify which Agency management officials she informed. However, Complainant stated that an investigation regarding this incident occurred on December 6, 2016. The EEO Specialist testified that he previously worked on prior EEO complaints Complainant had filed. The EEO Specialist explained that Complainant alleged a sexual harassment claim against him after he informed Complainant that sh e could not serve as a representative for a craft employee in the employee’s redress mediation because of Agency policy . 5 The EEO Specialist denied asking Complainant to call him, to visit him at work, or to send him pictures . However, the EEO Specialist explained that Complainant sent him pictures of her face via text message on her personal cell phone 4 -5 times. The EEO Specialist further explained that the pictures were sent “in conjunction with a holiday” and Complainant was “wishing [him] a happy holiday.” The EEO Specialist also admitted that he responded to one of these holiday texts f rom Complainant by texting a picture of himself “sitting in [his] office behind [his] desk” during either Christmas or New Years. The EEO Specialist clarified that this was the only occasion that he texted a picture to Complainant. The EEO Specialist further explained that Complainant voluntarily visited him in 2014 to inform him that she had been promoted, and to thank him for giving her suggestions as to how she could complete her application for her promotion. The EEO Specialist stated that this en counter resulted in a “brief congratulatory hug,” but the EEO Specialist could not remember who initiated the hug. The EEO Specialist denied having an erection during the brief hug , clarified that the hug occurred in the workplace but not in his office, and confirmed that this hug was the only hug he had with Complainant. M1 stated that he conducted an outside Fact Finding Team to complete an investigation after Complainant informed him on December 6, 2016, during an investigation interview , that the EEO Specialist had allegedly hugged her and pressed his erection against her “sometime in 2013.” M1 explained that he determined from the Fact Finding Report that there was no evidence of sexual harassment. M1 further explained that to his knowledge, Compla inant did not voice an objection to the EEO Specialist ’s alleged request for him to call her, and M1 determined that the evidence Complainant submitted indicated that “she called and texted [the EEO Specialist ] several times of her own volition.” M1 explai ned that Complainant informed him that she called the EEO Specialist for EEO purposes . However, M1 stated that Complainant’s text messages “appeared to be unrelated to [the EEO Specialist ’s] duties” and some of the text messages “appeared to have been ini tiated by [Complainant].” M1 further stated that the evidence indicated that Complainant text ed the EEO Specialist on June 5, 2015, informing him that she would be at his office that day and the EEO Specialist responded that he was at a 5 The EEO Specialist stated that Agency policy prohibits managers from serving as a craft employee’s representative in the redress proc ess. conference in Washington, D.C. and would call Complainant back later. Therefore, M1 determined from the report that Complainant and the EEO Specialist had an “outside of work friendship which [the EEO Specialist ] failed to disc lose to his manager.” Because of a potential conflict, M1 stated that he instructed the EEO Specialist ’s manager to have an Official Discussion with the EEO Specialist regarding his obligation to “report any potential conflicts of interest that may aris e as a result of being assigned an informal complaint for an employee that he has a friendship with.” As a result, M1 explained that he determined that the EEO Specialist would no longer be assigned as the ADR Specialist on any further informal complaints filed by Complainant. The record includes copies of text messages sent between Complainant and the EEO Specialist. The text messages include “ headshot ” pictures of Complainant and one headshot picture the EEO Specialist sent to Complainant in January 2016. The text messages indicate that Complainant initiated the majority of the text messages a nd she voluntary sent pictures to the EEO Specialist. In March 2015, Complainant requested an attorney’s contact information and attached a selfie to her mes sage. The EEO Specialist responded by providing the requested information, inquired about Complainant’s injury, and commented, “U take some very nice pictures. Why do u always look down.” Complainant then responded by texting the EEO Specialist another selfie and stated, “this one is front facing now send me some.” The record further indicates that the EEO Specialist wished Complainant a happy Easter and a happy Mother’s Day in April and May 2015. Complainant thanked the EEO Specialist for both message s and sent a selfie in response to the EEO Specialist’s Mother’s Day text . In June 2015, Complainant sent the EEO Specialist a selfie and informed him that she was at the District Office and the EEO Specialist responded by stating that he was at a conference in Washington, DC but would call her later. In December 2015, the EEO Specialist stated, “hello nice to see you. I thought you were going to hang around and talk.” Complainant responded with a selfie and stated, “Did not know what ur plans we re. So I went back to work. Call me sometime” and the EEO Specialist responded “Love the pic.” In January 2016, the EEO Specialist sent Complainant a selfie of himself taken at his office. In February 2016, Complainant sent the EEO Specialist a selfie wis hing him a happy Valentine’s Day to which the EEO Specialist responded, “Thank u. Same to u. U look very lovely.” On March 21, 2016 and April 16, 2016, Complainant sent the EEO Specialist text messages at midnight and 11:22 pm and inquired whether he was awake. The record also includes a screenshot of a Facebook friend request from Complainant to the EEO Specialist. We acknowledge that the EEO Specialist denied asking Complainant to call him, to visit him at work, or to send him pictures. We further acknowledge that the EEO Specialist denied having an erection when he hugged Complainant. This testimony directly conflicts with the statements provided by Complainant . Here, however, Complainant effectively waived h er right to have this matter considered before an EEOC AJ when she failed to respond to a notice informing her of a right to request a hearing. If Complainant had responded and requested a hearing , then the AJ may have developed the record more through discovery and cross -examination of witne ss. Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left with the EEO Specialist’s version of events and that of Complainant which are completely at odds. As such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of Health and Human Servs. , EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec. , EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric. , EEOC Appeal No. 0120102187 (Aug. 23, 2012) . However, even if true as alleged, Complainant has failed to demonstrate that these incidents subjected h er to discriminatory sexual harassment. Copies of the tex t messages exchanged between Complainant and the EEO Specialist indicate that most of these conversations were initiated by Complainant, the conversations were not sexually suggestive, and Complainant voluntarily sent selfies of herself to the EEO Speciali st. The record supports a determination that Complainant continued to text the EEO Specialist about nonwork- related matters after he allegedly hugged her and pressed his erection on her. Although the EEO Specialist denied having an erection during this hug, this incident, even if true, is an isolated one. We have held that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep ’t of Veterans Affairs , EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services , EEOC Request No. 05940481 (Feb. 16, 1995). Further, Complainant has not shown that his term or condition of employment was adversely affected by these isolated incidents. Therefore, Comp lainant has failed to establish that the Agency subjected her to discriminatory sexual harassment. Because we have discussed all claims on the merits, we need not address the Agency’s alternative dismissal of claim 1 on procedural grounds. We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 thir ty (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 Employm ent 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 rec eived 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 req uest 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). COMPLAINA NT’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 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 13, 2019 Date	[ "Hernandez v. Department of Transportation , EEOC Request No. 05900159 (June 28, 1990)", "Peterson v. Department of Health and Human Services , EEOC Request No. 05900467 (June 8, 1990)", "Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998)", "Complainant v. Dep't of Health and Human Servs....	[ -0.08850767463445663, 0.09293785691261292, 0.016787901520729065, 0.034985434263944626, -0.0056043523363769054, -0.02120746113359928, 0.04882138967514038, -0.05521349981427193, -0.05176425352692604, 0.0037706310395151377, 0.04280582442879677, -0.030427809804677963, -0.01638021133840084, -0....
2	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142833.txt	0120142833.txt	TXT	text/plain	11,580		July 3, 2014	Appeal Number: 0120142833 Background: At the time of events giving rise to this complaint, Complainant worked in "payroll1" at the Agency's Financial Management facility in Norfolk, Virginia. On June 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), color (White), and age (60 years at time of incident) when: 1. On or about March 11, 2014, Complainant discovered she had not been selected for a Financial Management Analyst GS-0501-07/09, position. The Agency dismissed the claim for untimely EEO Counselor contact. Legal Analysis: 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 record shows, however, that DM notified Complainant of the relevant time limit and warned her that should she subsequently decide to pursue the EEO process, the 45-day time limit still applied. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.	Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120142833 Agency No. 144008502092 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 3, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in "payroll1" at the Agency's Financial Management facility in Norfolk, Virginia. On June 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), color (White), and age (60 years at time of incident) when: 1. On or about March 11, 2014, Complainant discovered she had not been selected for a Financial Management Analyst GS-0501-07/09, position. The Agency dismissed the claim for untimely EEO Counselor contact. ANALYSIS AND FINDINGS EEOOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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. Complainant contends that she learned that she had not been selected for the position on March 11, 2014. The record includes an internal email revealing that Complainant contacted the EEO Counselor's office on that date. The email states that Complainant "has contacted the EEO office interested in participating in workplace dispute Alternative Dispute Resolution (ADR). Issues raised: Non selection for the position of Financial Management Analyst) GS-0501-07/9. Resolution: Wants to know why she did not meet the qualifications to be selected for the position." The email did not indicate that Complainant intended to initiate the EEO complaint process. The record on appeal contains an unsworn statement from the Deputy EEO Manager (DM) who maintained that when she met with Complainant "on or about March 10, 2014," Complainant: and I discussed non-EEO ADR workplace dispute [sic] vs. EEO ADR mediations on or about 10 March 2014. Specifically, I discussed non-EEO ADR workplace dispute with [Complainant], because after going over the EEO process (discrimination bases and types) with her, she did not indicate she felt she was discriminated based on the discrimination types provided to her. I further advised [Complainant] that our meeting and conversation on 10 March 2014 served strictly as advisory on the EEO process and did not serve as official EEO Contact. [Complainant] advised [Agency officials that] she wished to participate in non-EEO ADR Workplace Dispute Mediation. Agency Appeal Brief. DM further maintains that a few days later Complainant changed her mind and notified her office that she had decided to pursue the EEO process and that the EEO Counselor's office then provided Complainant "with the necessary EEO Contact forms for completion and submission to confirm her EEO Contact." A few days later, according to DM, Complainant again had a change of heart. Specifically, according to DM: On 17 March 2014, [Complainant] contacted me by email and stated, 'After talking this over completely with a union rep, I've decided to go with the mediation. Either the 2nd or 3rd of April will be okay,' On 17 March 2014, I emailed [Complainant] and requested she clarify whether she was referring to non-EEO ADR or EEO related ADR mediation in her email of 17 March 2014. [Complainant] replied and stated, 'Yes, I wish to pursue non-EEO ADR Mediation.' In response, I advised [Complainant] by email on 18 March 2014 that based on her email, my office would be working to now set up non-EEO ADR mediation and I further advised her that the timelines for EEO still apply in the event she decided once again to go the EEO route. On 18 March 2014, I once again advised [Complainant] that an employee must make EEO contact within 45 days of the alleged discrimination. Based on [Complainant's] election, my office scheduled a non-EEO ADR Mediation that was held on 24 April 2014. On or about 5 May 2014, [Complainant] contacted me and stated, 'Having a bad result with my mediation, I would like to resubmit my complaint with the EEOC, for an age, race and favoritism discrimination action." I advised [Complainant] by email on 5 May 2014 of the EEO Contact phone number to make official EEO contact. On 5 May 2014, [Complainant] made official EEO contact my office and confirmed her intent to participate in the official EEO process. The record confirms DM's version of events, specifically we note the record contains a copy of a series of emails between Complainant and DM wherein Complainant states, on March 17, 2014, that "[a]fter talking it over with a union rep, I've decided to go with the mediation." DM then responds: To ensure we are clear. When you say, you want mediation. I need you to confirm that you wish to pursue non-EEO ADR Mediation. If you recall you initially stated you wished to pursue non-EEO ADR Mediation, because you did not feel your issue related to an EEO discrimination type. Later, you indicated that you spoke with your representative and feel that your issue was related to an EEO discrimination type. I need you to confirm that you understand if mediation is set up, it would be based on a non-EEO ADR Mediation vice [sic] EEO related issue. Please confirm and I will proceed based on your confirmation. Complainant then responds, "yes, I wish to pursue non-EEO ADR mediation" to which DM responds, "Based on your email, I will being working the non-EEO ADR Mediation. However, please know that timelines for EEO still apply in the event you decide once again to go the EEO route. An employee must make EEO contact within 45 days of the alleged discrimination." The record thus shows that Complainant abandoned any initial efforts she may have made to initiate the EEO process on March 17, 2014 and she did not re-initiate her EEO contact until May 5, 2014, which is beyond the the forty-five (45) day limitation period for a nonselection that Complainant learned about on March 11, 2014. 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 record shows, however, that DM notified Complainant of the relevant time limit and warned her that should she subsequently decide to pursue the EEO process, the 45-day time limit still applied. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUSION The Dismissal is AFFIRMED. 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 (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 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 January 30, 2015 __________________ Date 1 The exact title of Complainant's position is unknown. The EEO Counselor's report contains an entry entitled "Complainant's position" and next to it the word "General Ledger" has been crossed out and the word "payroll" has been written in by hand. ------------------------------------------------------------ ------------------------------------------------------------	[ "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 621", "29 U.S.C. §§ 791" ]	[ -0.04759514331817627, 0.07785467803478241, -0.06848490238189697, 0.07572562247514725, 0.002960938261821866, 0.08485255390405655, 0.0043422020971775055, -0.0474136620759964, -0.03668230026960373, 0.03304900974035263, 0.000792686187196523, -0.05607454106211662, 0.03452787175774574, -0.003633...
3	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073324.txt	0120073324.txt	TXT	text/plain	26,381	Reese, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.	July 12, 2007	Appeal Number: 0120073324 Background: At the time of events giving rise to this complaint, complainant worked as a nurse recruiter at the agency's Medical Center in Los Angeles, California. Complainant has a Bachelor of Science degree in nursing, law degree, and master's degree in mental health nursing. Complainant also has previous experience as an EEO investigator, certified mediator/arbitrator, and final decision writer. On February 1, 2006, the agency advertised for the position of EEO Manager, GS-12/13 in the Office of the Director in West Los Angeles, California. According to the position description, the EEO Program Manager manages the medical center EEO program and is responsible for program development, administration, evaluation, and advisory functions. Complainant submitted an application for the position and was deemed qualified by the agency, but complainant was not selected for the position. On May 26, 2006, the agency advertised for four GS-12/13 Technical Writer positions. According to the position description, a Technical Writer serves as a consultant to the Director of Human Resources; acts as writer-editor in the analysis and evaluation of EEO claims and other labor cases; conducts legal research required for dispositive motions; represents the agency at hearings; and, consults with management regarding legal actions. Complainant applied for a Technical Writer position on May 31, 2006, and was deemed qualified for the position by the agency. However, the agency did not select complainant for the position and selected three GS-12 Technical Writers who worked in the Human Resources department for promotion to the position pursuant to the vacancy announcement. On December 20, 2006, complainant filed an EEO complaint alleging that she was discriminated against in reprisal for prior protected EEO activity under Title VII when on June 15, 2006 and September 29, 2006, she was notified that management failed to select her for the positions of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP). In an investigative affidavit, the Director for the Greater Los Angeles Healthcare Center stated that he was the selecting official for the EEO Program Manager position and was not aware of complainant's prior EEO activity at the time he made the selection. He stated that he also served on the selection panel for the position, along with the Assistant Regional Counsel (Counsel), Chief of Human Resources, and the Acting EEO Program Manager. He stated that the panelists developed interview questions, interviewed the candidates, and individually rated and scored each candidate. He stated that there were approximately seven or eight candidates for the position, but only four candidates with the top scores were invited to have a second interview for the position with the panelists and senior EEO management. The Director stated that although complainant was qualified for the position, she was not invited to a second round of interviews because she did not demonstrate much knowledge or experience in managing EEO programs and did not have the equivalent work experience of the candidate that was selected. He stated that complainant's interview performance was "not the strongest" because she "failed all the questions" and was unable to articulate her knowledge and skills in EEO program management. Exhibit B2, p. 7. He stated that at the end of the interview, complainant did not have any questions to ask the panelists, which made him think that she had not thought much about the position. He stated that based upon the first round of interviews, the panelists achieved a consensus opinion that complainant was not qualified enough for a second interview. He stated that after the second round of interviews, the panelists agreed that the selectee was the best applicant for the position. The Chief of Human Resources (Chief) stated that he was not aware of complainant's prior EEO activity at the time of the selections. He stated that after the applicants for the EEO Program Manager position were interviewed, the panelists ranked the candidates and referred the top three candidates to the Director. He stated that complainant was not referred to the Director because she did not perform well in the interview, especially with regard to her responses to questions about her leadership abilities. He further stated that the selectee was already in a GS-14 or GS-15 position, had experience as a civil rights attorney, and had a master's degree in Health Administration. Counsel testified that at the time of the selection, she was not aware of complainant's previous EEO activity. She stated that the selectee was chosen for the position because she was the most qualified candidate, was very bright, communicative, and had identical experience at a larger agency in a more complex position at a higher grade. She stated that during the interview, complainant displayed a "flip" attitude throughout the interview and seemed to be a "little sarcastic." Exhibit B3, p. 11. The Acting EEO Program Manager stated that at the time of the non-selections, he was aware that complainant had two or three pending EEO complaints. He stated that the panelists asked each candidate the same six questions during the interviews. He stated that complainant was not referred to the second round of interviews with the Director because although she answered the interview questions "reasonably," she did not have experience as an affirmative employment officer, diversity coordinator, or EEO advisor to the director. He stated that the top candidates demonstrated that they not only knew what the position entailed, but also showed what they would do with respect to diversity, affirmative action, and outreach, which are 90 percent of the job. He stated that the selectee was chosen for the EEO Program Manager position because she had experience in affirmative action, diversity, and outreach and was an EEO manager, Alternative Dispute Resolution coordinator, and manager of a complaint processing unit, whereas complainant did not have this experience. Regarding the Technical Writer position, the Chief stated that five candidates applied for the position, including complainant. He stated that the applicants were referred to General Counsel because Technical Writers work for General Counsel, and General Counsel chose its preferred candidates, who were already on staff as Technical Writers. He stated that the Counsel decided to only fill three Technical Writer positions because "there really wasn't any room or budget money" for a fourth Technical Writer. Exhibit B4, p. 14. Counsel stated that there were no interviews for three Technical Writer positions. She stated that although she was part of the selection process for the positions, she was not the selecting official and did not sign the certification for the position. Counsel stated that she recommended the top three applicants based on the order of the names on the certificate of eligible candidates, but Human Resources made the final decision. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that complainant established a prima facie case of reprisal with respect to the EEO Program Manager position because the Acting EEO Program Manager knew about her previous EEO activity, but complainant failed to prove that the agency's explanations for not selecting her were pretext for reprisal. With respect to the Technical Writing position, the agency determined that complainant failed to establish a case of reprisal for this matter because the selecting officials for this position were not aware of complainant's previous EEO activity. CONTENTIONS ON APPEAL On appeal, complainant contends that the agency improperly found no reprisal. Complainant contends that the Director, Chief, and Counsel should have known about her previous EEO activity which resulted in a settlement agreement on May 2, 2006, because agency policy states that settlement agreements drafted by the EEO Office will be reviewed by the Director of Human Resources, Regional Counsel, and the appropriate Executive Leader prior to submission to the Executive Director. Complainant further contends that the Director should have known about the previous EEO activity because the Director is normally informed by the EEO Manager of all formal EEO complaints filed against the agency. With respect to the EEO Manager position, complainant argues that the agency failed to provide ranking/rating sheets and or notes for the record that indicated how applicants were selected to proceed to the second round of interviews for the position. Regarding the Technical Writer position, complainant argues that the agency retaliated against her because although there were four Technical Writer vacancies, the agency only filled three of the vacancies. The agency contends that its final decision should be affirmed because all but one of the management officials involved in the selection processes did not have knowledge of complainant's prior EEO activity at the time of the non-selections. Legal Analysis: the Commission AFFIRMS the agency's final decision. ISSUES PRESENTED 1. Whether an adverse inference should be drawn against the agency because it failed to provide requested documentation to the EEO investigator regarding complainant's non-selection for the position of EEO Program Manager. 2. Whether the agency properly found that it did not subject complainant to reprisal for prior EEO activity when it failed to select her for two positions because complainant failed to prove that management officials knew about her previous EEO activity when she was not selected for a Technical Writer position, and complainant did not rebut the agency's non-discriminatory explanations for not selecting her for the EEO Program Manager position. BACKGROUND At the time of events giving rise to this complaint, complainant worked as a nurse recruiter at the agency's Medical Center in Los Angeles, California. Complainant has a Bachelor of Science degree in nursing, law degree, and master's degree in mental health nursing. Complainant also has previous experience as an EEO investigator, certified mediator/arbitrator, and final decision writer. On February 1, 2006, the agency advertised for the position of EEO Manager, GS-12/13 in the Office of the Director in West Los Angeles, California. According to the position description, the EEO Program Manager manages the medical center EEO program and is responsible for program development, administration, evaluation, and advisory functions. Complainant submitted an application for the position and was deemed qualified by the agency, but complainant was not selected for the position. On May 26, 2006, the agency advertised for four GS-12/13 Technical Writer positions. According to the position description, a Technical Writer serves as a consultant to the Director of Human Resources; acts as writer-editor in the analysis and evaluation of EEO claims and other labor cases; conducts legal research required for dispositive motions; represents the agency at hearings; and, consults with management regarding legal actions. Complainant applied for a Technical Writer position on May 31, 2006, and was deemed qualified for the position by the agency. However, the agency did not select complainant for the position and selected three GS-12 Technical Writers who worked in the Human Resources department for promotion to the position pursuant to the vacancy announcement. On December 20, 2006, complainant filed an EEO complaint alleging that she was discriminated against in reprisal for prior protected EEO activity under Title VII when on June 15, 2006 and September 29, 2006, she was notified that management failed to select her for the positions of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP). In an investigative affidavit, the Director for the Greater Los Angeles Healthcare Center stated that he was the selecting official for the EEO Program Manager position and was not aware of complainant's prior EEO activity at the time he made the selection. He stated that he also served on the selection panel for the position, along with the Assistant Regional Counsel (Counsel), Chief of Human Resources, and the Acting EEO Program Manager. He stated that the panelists developed interview questions, interviewed the candidates, and individually rated and scored each candidate. He stated that there were approximately seven or eight candidates for the position, but only four candidates with the top scores were invited to have a second interview for the position with the panelists and senior EEO management. The Director stated that although complainant was qualified for the position, she was not invited to a second round of interviews because she did not demonstrate much knowledge or experience in managing EEO programs and did not have the equivalent work experience of the candidate that was selected. He stated that complainant's interview performance was "not the strongest" because she "failed all the questions" and was unable to articulate her knowledge and skills in EEO program management. Exhibit B2, p. 7. He stated that at the end of the interview, complainant did not have any questions to ask the panelists, which made him think that she had not thought much about the position. He stated that based upon the first round of interviews, the panelists achieved a consensus opinion that complainant was not qualified enough for a second interview. He stated that after the second round of interviews, the panelists agreed that the selectee was the best applicant for the position. The Chief of Human Resources (Chief) stated that he was not aware of complainant's prior EEO activity at the time of the selections. He stated that after the applicants for the EEO Program Manager position were interviewed, the panelists ranked the candidates and referred the top three candidates to the Director. He stated that complainant was not referred to the Director because she did not perform well in the interview, especially with regard to her responses to questions about her leadership abilities. He further stated that the selectee was already in a GS-14 or GS-15 position, had experience as a civil rights attorney, and had a master's degree in Health Administration. Counsel testified that at the time of the selection, she was not aware of complainant's previous EEO activity. She stated that the selectee was chosen for the position because she was the most qualified candidate, was very bright, communicative, and had identical experience at a larger agency in a more complex position at a higher grade. She stated that during the interview, complainant displayed a "flip" attitude throughout the interview and seemed to be a "little sarcastic." Exhibit B3, p. 11. The Acting EEO Program Manager stated that at the time of the non-selections, he was aware that complainant had two or three pending EEO complaints. He stated that the panelists asked each candidate the same six questions during the interviews. He stated that complainant was not referred to the second round of interviews with the Director because although she answered the interview questions "reasonably," she did not have experience as an affirmative employment officer, diversity coordinator, or EEO advisor to the director. He stated that the top candidates demonstrated that they not only knew what the position entailed, but also showed what they would do with respect to diversity, affirmative action, and outreach, which are 90 percent of the job. He stated that the selectee was chosen for the EEO Program Manager position because she had experience in affirmative action, diversity, and outreach and was an EEO manager, Alternative Dispute Resolution coordinator, and manager of a complaint processing unit, whereas complainant did not have this experience. Regarding the Technical Writer position, the Chief stated that five candidates applied for the position, including complainant. He stated that the applicants were referred to General Counsel because Technical Writers work for General Counsel, and General Counsel chose its preferred candidates, who were already on staff as Technical Writers. He stated that the Counsel decided to only fill three Technical Writer positions because "there really wasn't any room or budget money" for a fourth Technical Writer. Exhibit B4, p. 14. Counsel stated that there were no interviews for three Technical Writer positions. She stated that although she was part of the selection process for the positions, she was not the selecting official and did not sign the certification for the position. Counsel stated that she recommended the top three applicants based on the order of the names on the certificate of eligible candidates, but Human Resources made the final decision. At the	Jacqueline F. Newbold-Reese, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120073324 Agency No. 200P-0691-2007100240 DECISION On July 12, 2007, complainant filed an appeal from the agency's June 11, 2007 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision. ISSUES PRESENTED 1. Whether an adverse inference should be drawn against the agency because it failed to provide requested documentation to the EEO investigator regarding complainant's non-selection for the position of EEO Program Manager. 2. Whether the agency properly found that it did not subject complainant to reprisal for prior EEO activity when it failed to select her for two positions because complainant failed to prove that management officials knew about her previous EEO activity when she was not selected for a Technical Writer position, and complainant did not rebut the agency's non-discriminatory explanations for not selecting her for the EEO Program Manager position. BACKGROUND At the time of events giving rise to this complaint, complainant worked as a nurse recruiter at the agency's Medical Center in Los Angeles, California. Complainant has a Bachelor of Science degree in nursing, law degree, and master's degree in mental health nursing. Complainant also has previous experience as an EEO investigator, certified mediator/arbitrator, and final decision writer. On February 1, 2006, the agency advertised for the position of EEO Manager, GS-12/13 in the Office of the Director in West Los Angeles, California. According to the position description, the EEO Program Manager manages the medical center EEO program and is responsible for program development, administration, evaluation, and advisory functions. Complainant submitted an application for the position and was deemed qualified by the agency, but complainant was not selected for the position. On May 26, 2006, the agency advertised for four GS-12/13 Technical Writer positions. According to the position description, a Technical Writer serves as a consultant to the Director of Human Resources; acts as writer-editor in the analysis and evaluation of EEO claims and other labor cases; conducts legal research required for dispositive motions; represents the agency at hearings; and, consults with management regarding legal actions. Complainant applied for a Technical Writer position on May 31, 2006, and was deemed qualified for the position by the agency. However, the agency did not select complainant for the position and selected three GS-12 Technical Writers who worked in the Human Resources department for promotion to the position pursuant to the vacancy announcement. On December 20, 2006, complainant filed an EEO complaint alleging that she was discriminated against in reprisal for prior protected EEO activity under Title VII when on June 15, 2006 and September 29, 2006, she was notified that management failed to select her for the positions of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP). In an investigative affidavit, the Director for the Greater Los Angeles Healthcare Center stated that he was the selecting official for the EEO Program Manager position and was not aware of complainant's prior EEO activity at the time he made the selection. He stated that he also served on the selection panel for the position, along with the Assistant Regional Counsel (Counsel), Chief of Human Resources, and the Acting EEO Program Manager. He stated that the panelists developed interview questions, interviewed the candidates, and individually rated and scored each candidate. He stated that there were approximately seven or eight candidates for the position, but only four candidates with the top scores were invited to have a second interview for the position with the panelists and senior EEO management. The Director stated that although complainant was qualified for the position, she was not invited to a second round of interviews because she did not demonstrate much knowledge or experience in managing EEO programs and did not have the equivalent work experience of the candidate that was selected. He stated that complainant's interview performance was "not the strongest" because she "failed all the questions" and was unable to articulate her knowledge and skills in EEO program management. Exhibit B2, p. 7. He stated that at the end of the interview, complainant did not have any questions to ask the panelists, which made him think that she had not thought much about the position. He stated that based upon the first round of interviews, the panelists achieved a consensus opinion that complainant was not qualified enough for a second interview. He stated that after the second round of interviews, the panelists agreed that the selectee was the best applicant for the position. The Chief of Human Resources (Chief) stated that he was not aware of complainant's prior EEO activity at the time of the selections. He stated that after the applicants for the EEO Program Manager position were interviewed, the panelists ranked the candidates and referred the top three candidates to the Director. He stated that complainant was not referred to the Director because she did not perform well in the interview, especially with regard to her responses to questions about her leadership abilities. He further stated that the selectee was already in a GS-14 or GS-15 position, had experience as a civil rights attorney, and had a master's degree in Health Administration. Counsel testified that at the time of the selection, she was not aware of complainant's previous EEO activity. She stated that the selectee was chosen for the position because she was the most qualified candidate, was very bright, communicative, and had identical experience at a larger agency in a more complex position at a higher grade. She stated that during the interview, complainant displayed a "flip" attitude throughout the interview and seemed to be a "little sarcastic." Exhibit B3, p. 11. The Acting EEO Program Manager stated that at the time of the non-selections, he was aware that complainant had two or three pending EEO complaints. He stated that the panelists asked each candidate the same six questions during the interviews. He stated that complainant was not referred to the second round of interviews with the Director because although she answered the interview questions "reasonably," she did not have experience as an affirmative employment officer, diversity coordinator, or EEO advisor to the director. He stated that the top candidates demonstrated that they not only knew what the position entailed, but also showed what they would do with respect to diversity, affirmative action, and outreach, which are 90 percent of the job. He stated that the selectee was chosen for the EEO Program Manager position because she had experience in affirmative action, diversity, and outreach and was an EEO manager, Alternative Dispute Resolution coordinator, and manager of a complaint processing unit, whereas complainant did not have this experience. Regarding the Technical Writer position, the Chief stated that five candidates applied for the position, including complainant. He stated that the applicants were referred to General Counsel because Technical Writers work for General Counsel, and General Counsel chose its preferred candidates, who were already on staff as Technical Writers. He stated that the Counsel decided to only fill three Technical Writer positions because "there really wasn't any room or budget money" for a fourth Technical Writer. Exhibit B4, p. 14. Counsel stated that there were no interviews for three Technical Writer positions. She stated that although she was part of the selection process for the positions, she was not the selecting official and did not sign the certification for the position. Counsel stated that she recommended the top three applicants based on the order of the names on the certificate of eligible candidates, but Human Resources made the final decision. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that complainant established a prima facie case of reprisal with respect to the EEO Program Manager position because the Acting EEO Program Manager knew about her previous EEO activity, but complainant failed to prove that the agency's explanations for not selecting her were pretext for reprisal. With respect to the Technical Writing position, the agency determined that complainant failed to establish a case of reprisal for this matter because the selecting officials for this position were not aware of complainant's previous EEO activity. CONTENTIONS ON APPEAL On appeal, complainant contends that the agency improperly found no reprisal. Complainant contends that the Director, Chief, and Counsel should have known about her previous EEO activity which resulted in a settlement agreement on May 2, 2006, because agency policy states that settlement agreements drafted by the EEO Office will be reviewed by the Director of Human Resources, Regional Counsel, and the appropriate Executive Leader prior to submission to the Executive Director. Complainant further contends that the Director should have known about the previous EEO activity because the Director is normally informed by the EEO Manager of all formal EEO complaints filed against the agency. With respect to the EEO Manager position, complainant argues that the agency failed to provide ranking/rating sheets and or notes for the record that indicated how applicants were selected to proceed to the second round of interviews for the position. Regarding the Technical Writer position, complainant argues that the agency retaliated against her because although there were four Technical Writer vacancies, the agency only filled three of the vacancies. The agency contends that its final decision should be affirmed because all but one of the management officials involved in the selection processes did not have knowledge of complainant's prior EEO activity at the time of the non-selections. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). EEO Program Manager In this case, complainant applied for and is qualified for an EEO Program Manager position, but the agency did not select her for the position. Complainant previously engaged in EEO activity on February 10, 2006, when she filed an informal EEO complaint in which she alleged that the Director for the Greater Los Angeles Healthcare Center discriminated against her on the basis of race and age, which resulted in a settlement agreement dated May 2, 2006. Complainant was notified that she was not selected for the position slightly over one month after she entered into the settlement agreement, which we determine creates a nexus between her previous EEO activity and her non-selection. Further, although three of the four selection panelists maintained that they did not know about complainant's previous EEO activity at the time of the non-selection, the Acting EEO Program Manager stated that he was aware of complainant's previous EEO activity. Thus, we find that complainant established a prima facie of reprisal case for the EEO Program Manager non-selection. Nonetheless, we also determine that the agency provided legitimate, non-discriminatory reasons for not selecting complainant. Specifically, management stated that it did not select complainant for the EEO Program Manager position because the selectee had previous experience in affirmative action, outreach, and managing an EEO program, whereas complainant did not have such experience. Management further stated that complainant did not articulate her knowledge and skills in EEO program management during the interview. Although management officials provided investigative statements in which they recounted the selection process and explained why complainant was not selected for a second round interview, we note that the agency did not provide any copies of the interview notes or rating/evaluation sheets. Moreover, the agency provided the application of the selectee for the record, but did not provide the applications of the other three applicants who were selected to compete at the second round of interviews. The record reveals that on February 15, 2007, the EEO investigator asked the agency to produce documentation reflecting how it evaluated the candidates for the EEO Program Manager position, including interview notes and any other documentation reflecting the reasons for selecting the candidate. In a memorandum dated March 5, 2007, Human Resources informed EEO officials that the interview notes and evaluation sheets for the EEO Program Manager position "were not preserved," and the record does not contain the requested documentation. Exhibit A3b, p. 1. We note that EEOC Regulation 29 C.F.R. § 1602.14 provides that agencies must preserve any records pertaining to selections and promotions for a period of one year from the date of the making of the record or the personnel action, whichever comes later. Moreover, the regulation requires that once the complaint process is initiated, the agency is required to retain personnel records until a final disposition of the complaint. Because the agency has failed to comply with 29 C.F.R. § 1602.14, we take an adverse inference against the agency and find that had the missing records been preserved, they would have shown that the agency's explanations for why complainant was not granted a second interview were not credible. See Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000)). Nevertheless, even with this adverse inference, the evidence of record does not establish that complainant was not selected because of reprisal.1 The record contains a copy of complainant's and the selectee's applications. At the time of the selection, the selectee was a GS-14/15 equivalent Equal Employment Specialist Team Leader with Office of Comptroller of the Currency. In that position, she managed the EEO pre-complaint and formal process and Fair Alternatives and Innovative Resolutions program; analyzed EEO complaint reports for the EEO Director; reviewed EEO investigative files; briefed Senior Deputy Comptrollers and other executives on EEO cases; drafted policies and procedures governing alternative dispute resolution; conducted training for EEO counselors and mediators; and, trained employees on the EEO process. Additionally, the selectee also worked as the Director of Compliance and Equal Employment Specialist at United States Customs and Border Protection and Human Resources System Design Team Member at the Department of Homeland Security. In these positions, the selectee implemented EEO policies, analyzed EEO demographics for Affirmative Employment Plans, managed a National Disability Program, wrote articles on EEO issues, and approved special emphasis and outreach programs. The selectee has law and Master of Public Administration degrees. According to complainant's application, she has experience as a certified mediator, arbitrator, Civil Service Commission Hearing Officer, EEO investigator, adjunct professor, conflict management trainer, and final agency decision writer. We find that the selectee possessed plainly superior qualifications for the EEO Program Manager position, in light of her extensive experience and expertise in a broad swath of federal sector EEO fields, including EEO management, alternative dispute resolution, EEO training, Management Directive 715 reports, Affirmative Employment Plans, and special emphasis and outreach programs. While complainant had experience in mediation, investigations, and final decision writing at the time of the non-selection, she clearly did not have the broad EEO or management experience that the selectee possessed for the position. Consequently, we find that despite the adverse inference that the agency's explanations are unworthy of belief, we find no persuasive evidence of reprisal here because the selectee's qualifications for the EEO Program Manager position are plainly superior to complainant's qualifications.2 As such, we find no persuasive evidence that the agency did not select her because of reprisal. See Carey Weathersy v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16, 2007) (Commission found no discrimination where, even with an adverse inference for failure to preserve records from the selection process, the record does not establish that complainant would have been chosen over the selectee for the position). Thus, we find that the record in this case does not establish that the agency retaliated against complainant when it failed to select her for the EEO Program Manager position. Technical Writer Complainant applied for a Technical Writer position, and the agency deemed her qualified for the position. However, the selecting officials asserted that they were not aware of complainant's prior EEO activity when they made the selection for this position. Complainant maintains that the selecting officials should have been aware of her prior EEO activity because agency policy states that all settlement agreements must be reviewed by the Director of Human Resources and Regional Counsel before being submitted to the Executive Director, and a copy of the executed agreement must be sent to both agency officials. However, while agency policy and procedure may indicate that both agency officials should have known about complainant's previous EEO activity because of their jobs, complainant failed to show that the selecting officials actually knew that she previously engaged in EEO activity when they made their selections. Consequently, we find that complainant failed to establish a prima facie case of reprisal for this claim. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the agency's final decision because the preponderance of the evidence of record does not establish that reprisal occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208) 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), 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 (S0408) 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 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 (Z1008) 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 _____11/17/09_____________ Date 1 In Hicks, the Supreme Court held that a fact finder is not required, as a matter of law, to find discrimination whenever it finds that an employer's explanation for its actions is not credible. Id. at 519. The Court, however, made clear that a fact finder might find discrimination in such circumstances. Id. at 524. The critical factor is that a fact finder must be persuaded by the complainant that it was discrimination that motivated the employer to act as it did. Id. 2 In fact, on appeal, complainant acknowledges that she never asserted that her qualifications were plainly superior to the selectees' qualifications. Complainant does not argue that selectee would not have been referred to the second round of interviews. ?? ?? ?? ??	[ "Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)", "Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997)", "Carey Weathersy v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16, 2007)", "411 U.S. 792", "438 U.S. 567", "545 F.2d...	[ -0.10920216888189316, 0.0549066960811615, 0.04095671698451042, 0.014797156676650047, 0.02606896497309208, 0.014197753742337227, 0.017335038632154465, 0.017627878114581108, 0.005216845776885748, 0.062093585729599, 0.03297081217169762, -0.05778960883617401, -0.030576976016163826, -0.05214820...
4	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981759.txt	01981759.txt	TXT	text/plain	11,007		December 3, 1998	Appeal Number: 01981759 Case Facts: Appellant filed the instant appeal from the agency's December 3, 1997 decision dismissing appellant's complaint for failure to timely contact an EEO Counselor. Legal Analysis: EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory. The complaint concerns the allegedly discriminatory behavior by appellant's supervisor on February 5, 1997. The agency found that appellant initially contacted an EEO Counselor on April 7, 1997. The EEO Counselor's report states that appellant initially contacted an EEO Counselor on April 7, 1997. On appeal appellant states in an affidavit that she contacted EEO Counselor A in February 1997. Appellant claims that EEO Counselor A informed appellant that there were no EEO Counselors available that day and that appellant would be called by the EEO Office when an EEO counselor was available. Appellant claims that when she contacted EEO Counselor A in February 1997, EEO Counselor made a "notation" of that contact. Appellant states that because she was not subsequently contacted by the EEO Office, she recontacted the EEO Office and was eventually assigned an EEO Counselor. Appellant states that EEO Counselor B (the EEO Counselor who signed the EEO Counselor's report) spoke with EEO Counselor A and "her supervisor" and confirmed that appellant had been in the EEO Office in February 1997 and that EEO Counselor A had a record of the February 1997 contact. Appellant also has submitted a copy of an Initial Interview form which indicates that appellant contacted the EEO Office in February 1997 but that an EEO Counselor was unavailable. The agency has supplied a copy of what appears to be that same Initial Interview form with further writing on the form. The agency's copy has an asterisk () next to the February 1997 date. Below the February 1997 date in the agency's copy of the form is the following writing: "EEO Records reflect 7 Apr 97." The agency has not supplied affidavits from EEO Counselor A or EEO Counselor B addressing whether appellant contacted the EEO Office in February 1997 and the nature of that contact. The agency has not supplied an affidavit from the appropriate agency official addressing who wrote the February 1997 contact date on the Initial Interview form. Finally, the agency has not indicated that it has examined the logs of the EEO Office or the notes of EEO Counselor A to determine if appellant contacted the EEO Office in February 1997. The Commission finds that the agency has not conducted an adequate investigation to determine whether the instant allegation was timely raised with an EEO Counselor. The Commission shall remand the matter so the agency can place into the record more evidence addressing the issue of whether appellant timely contacted an EEO Counselor. The agency's decision dismissing the complaint is VACATED and we REMAND the complaint to the agency for further processing in accordance with this decision and applicable regulations. ORDER The agency shall supplement the record with: 1. An affidavit from EEO Counselor A addressing whether appellant attempted to contact an EEO Counselor in February 1997. 2. An affidavit from EEO Counselor B addressing whether in conversations with EEO Counselor A, EEO Counselor A stated that appellant attempted to contact an EEO Counselor in February 1997. 3. All relevant EEO Office logs in February 1997 and notations from EEO Counselor A indicating whether appellant contacted the EEO Office in February 1997. 4. An affidavit from the appropriate agency official explaining who wrote the date of February 1997 on the Initial Interview form. The agency shall redetermine whether appellant timely contacted an EEO Counselor. Within 30 days of the date this decision becomes final the agency shall either issue a letter to appellant accepting the complaint for investigation or issue a new decision to appellant dismissing the complaint. A copy of the letter accepting the complaint or a copy of the new decision dismissing the complaint must be sent to the Compliance Officer as referenced herein. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.	Tommie L. Jackson v. Department of the Army 01981759 December 3, 1998 Tommie L. Jackson, ) Appellant, ) ) v. ) Appeal No. 01981759 ) Louis Caldera, ) Secretary, ) Department of the Army, ) Agency. ) _________________________________) DECISION Appellant filed the instant appeal from the agency's December 3, 1997 decision dismissing appellant's complaint for failure to timely contact an EEO Counselor. EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory. The complaint concerns the allegedly discriminatory behavior by appellant's supervisor on February 5, 1997. The agency found that appellant initially contacted an EEO Counselor on April 7, 1997. The EEO Counselor's report states that appellant initially contacted an EEO Counselor on April 7, 1997. On appeal appellant states in an affidavit that she contacted EEO Counselor A in February 1997. Appellant claims that EEO Counselor A informed appellant that there were no EEO Counselors available that day and that appellant would be called by the EEO Office when an EEO counselor was available. Appellant claims that when she contacted EEO Counselor A in February 1997, EEO Counselor made a "notation" of that contact. Appellant states that because she was not subsequently contacted by the EEO Office, she recontacted the EEO Office and was eventually assigned an EEO Counselor. Appellant states that EEO Counselor B (the EEO Counselor who signed the EEO Counselor's report) spoke with EEO Counselor A and "her supervisor" and confirmed that appellant had been in the EEO Office in February 1997 and that EEO Counselor A had a record of the February 1997 contact. Appellant also has submitted a copy of an Initial Interview form which indicates that appellant contacted the EEO Office in February 1997 but that an EEO Counselor was unavailable. The agency has supplied a copy of what appears to be that same Initial Interview form with further writing on the form. The agency's copy has an asterisk () next to the February 1997 date. Below the February 1997 date in the agency's copy of the form is the following writing: "EEO Records reflect 7 Apr 97." The agency has not supplied affidavits from EEO Counselor A or EEO Counselor B addressing whether appellant contacted the EEO Office in February 1997 and the nature of that contact. The agency has not supplied an affidavit from the appropriate agency official addressing who wrote the February 1997 contact date on the Initial Interview form. Finally, the agency has not indicated that it has examined the logs of the EEO Office or the notes of EEO Counselor A to determine if appellant contacted the EEO Office in February 1997. The Commission finds that the agency has not conducted an adequate investigation to determine whether the instant allegation was timely raised with an EEO Counselor. The Commission shall remand the matter so the agency can place into the record more evidence addressing the issue of whether appellant timely contacted an EEO Counselor. The agency's decision dismissing the complaint is VACATED and we REMAND the complaint to the agency for further processing in accordance with this decision and applicable regulations. ORDER The agency shall supplement the record with: 1. An affidavit from EEO Counselor A addressing whether appellant attempted to contact an EEO Counselor in February 1997. 2. An affidavit from EEO Counselor B addressing whether in conversations with EEO Counselor A, EEO Counselor A stated that appellant attempted to contact an EEO Counselor in February 1997. 3. All relevant EEO Office logs in February 1997 and notations from EEO Counselor A indicating whether appellant contacted the EEO Office in February 1997. 4. An affidavit from the appropriate agency official explaining who wrote the date of February 1997 on the Initial Interview form. The agency shall redetermine whether appellant timely contacted an EEO Counselor. Within 30 days of the date this decision becomes final the agency shall either issue a letter to appellant accepting the complaint for investigation or issue a new decision to appellant dismissing the complaint. A copy of the letter accepting the complaint or a copy of the new decision dismissing the complaint must be sent to the Compliance Officer as referenced herein. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: December 3, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations	[]	[ -0.1543222963809967, 0.07610446959733963, 0.01839848980307579, -0.02248232625424862, 0.07240220904350281, -0.02359386533498764, 0.05783296003937721, 0.07085220515727997, -0.03454555198550224, 0.052340902388095856, 0.06753083318471909, -0.055009517818689346, -0.02971651218831539, 0.01727572...
5	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170901.txt	0120170901.txt	TXT	text/plain	15,647	Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.	December 21, 2016	Appeal Number: 0120170901 Background: At the time of events giving rise to this complaint, Complainant was a supervisor at the Agency's Dwight D. Eisenhower Army Medical Center, Integrated Disability Evaluation Center in Fort Gordon, Georgia. On August 29, 2016, Complainant filed a formal complaint alleging that she was harassed based on her race (African-American), sex (female), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when: 1. On May 2012, she was advised by the Chief, Patient Administration, not to have anything to do with an employee who filed an EEO complaint; 2. Between August 2012 and December 2013, her supervisor (S1) made statements about how he liked to perform oral sex, made slurping sounds to demonstrate how he did so, and made sexual remarks to female employees; 3. During January 2013 - May 2013, she was harassed and made to work in a hostile work environment; and 4. On May 16, 2013, she was issued a letter informing her that her term of employment would not be renewed and that her employment would cease effective May 21, 2013.2 Complainant wrote that on May 17, 2013, she went to the Fort Gordon EEO office to get information on the EEO complaint process. An "Information Inquiry Summary" form signed by Complainant and "EEO Official" 1 indicates initial contact on May 17, 2013. Therein, Complainant wrote that unlike others, her term appointment was not extended - she did not raise other matters. Language in the form confirmed Complainant was advised of the 45-calendar day time limit to initiate EEO counseling. EEO Official 1 wrote therein that Complainant had another job offer and wanted to decide later if she will file a complaint. On June 24, 2013, EEO Official 1 provided Complainant a memorandum on "Aggrieved Person's Rights and Responsibilities" which detailed the EEO process, including that if resolution of her complaint is not achieved within 30 calendar days from the date Complainant initiated EEO counseling she would be given a notice of right to file a formal complaint, but if she was offered and accepted mediation, the notice time would be extended to 60 days. On October 24, 2013, an EEO Administrative Technician confirmed to Complainant in writing that her mediation was scheduled for October 30, 2013. Complainant contends she had a scheduling conflict, and was advised the mediation would be rescheduled. She contends that she contacted EEO Officer 1 several weeks later and was told they were working on her complaint. On December 18, 2015, Complainant sent an email to EEO Official 1 only updating her work contact information, which indicated she was an EEO Specialist, Affirmative Employment Program Manager, with an EEO Office at Fort Myer, Virginia. She contends that on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting an update on her complaint processing and received no response. Thereafter, on August 29, 2016, Complainant filed her EEO complaint. The Agency then wrote Complainant that a review of its EEO iComplaints data base, EEO complaint files, and the EEO Complaint Log covering May 17, 2013 - August 26, 2016, did not indicate that she contacted an EEO official to file an EEO complaint. Complainant responded in September 2016, with documentation of her contacts. The record contains the May 2013 intake form, the June 2013 memorandum, the October 2013 mediation scheduling email, and the December 2015 update contact email. The Agency responded to Complainant that her documentation did not show that she met with an EEO Counselor to have her EEO complaint counseled. At a minimum, Complainant provided the Agency with the above October 2013 and December 2015 emails, and she may have provided the other two referenced documents. The Agency dismissed the complaint under the doctrine of laches, finding Complainant did not exercise due diligence in pursing her complaint by allowing it to languish. It reasoned that after mediation fell through in October 2013, Complainant did not contact the EEO Office again until December 2015 (over two years) - and then only with her work contact information. The Agency found that Complainant's next contact was in August 2016, to file her EEO complaint. As recounted above, Complainant asserted that a few weeks after mediation fell through she contacted EEO Officer 1, and on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting the status of her complaint. The Agency argued on appeal that Complainant, an EEO Specialist, should know the importance of retaining correspondence in her case and did not provide copies of these emails. On appeal, Complainant argues that laches do not apply because the Agency failed to notify her of the status of her complaint, failed to issue her a notice of right to file her complaint, and indicated they were working on her complaint, allowing her to become confused. In opposition to the appeal the Agency argues that laches applies. It also represents that EEO Officer 1 was the Fort Gordon EEO Director, and is no longer employed by the Agency.	Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120170901 Agency No. ARGORDON13MAY04525 DECISION On December 21, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 30, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was a supervisor at the Agency's Dwight D. Eisenhower Army Medical Center, Integrated Disability Evaluation Center in Fort Gordon, Georgia. On August 29, 2016, Complainant filed a formal complaint alleging that she was harassed based on her race (African-American), sex (female), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when: 1. On May 2012, she was advised by the Chief, Patient Administration, not to have anything to do with an employee who filed an EEO complaint; 2. Between August 2012 and December 2013, her supervisor (S1) made statements about how he liked to perform oral sex, made slurping sounds to demonstrate how he did so, and made sexual remarks to female employees; 3. During January 2013 - May 2013, she was harassed and made to work in a hostile work environment; and 4. On May 16, 2013, she was issued a letter informing her that her term of employment would not be renewed and that her employment would cease effective May 21, 2013.2 Complainant wrote that on May 17, 2013, she went to the Fort Gordon EEO office to get information on the EEO complaint process. An "Information Inquiry Summary" form signed by Complainant and "EEO Official" 1 indicates initial contact on May 17, 2013. Therein, Complainant wrote that unlike others, her term appointment was not extended - she did not raise other matters. Language in the form confirmed Complainant was advised of the 45-calendar day time limit to initiate EEO counseling. EEO Official 1 wrote therein that Complainant had another job offer and wanted to decide later if she will file a complaint. On June 24, 2013, EEO Official 1 provided Complainant a memorandum on "Aggrieved Person's Rights and Responsibilities" which detailed the EEO process, including that if resolution of her complaint is not achieved within 30 calendar days from the date Complainant initiated EEO counseling she would be given a notice of right to file a formal complaint, but if she was offered and accepted mediation, the notice time would be extended to 60 days. On October 24, 2013, an EEO Administrative Technician confirmed to Complainant in writing that her mediation was scheduled for October 30, 2013. Complainant contends she had a scheduling conflict, and was advised the mediation would be rescheduled. She contends that she contacted EEO Officer 1 several weeks later and was told they were working on her complaint. On December 18, 2015, Complainant sent an email to EEO Official 1 only updating her work contact information, which indicated she was an EEO Specialist, Affirmative Employment Program Manager, with an EEO Office at Fort Myer, Virginia. She contends that on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting an update on her complaint processing and received no response. Thereafter, on August 29, 2016, Complainant filed her EEO complaint. The Agency then wrote Complainant that a review of its EEO iComplaints data base, EEO complaint files, and the EEO Complaint Log covering May 17, 2013 - August 26, 2016, did not indicate that she contacted an EEO official to file an EEO complaint. Complainant responded in September 2016, with documentation of her contacts. The record contains the May 2013 intake form, the June 2013 memorandum, the October 2013 mediation scheduling email, and the December 2015 update contact email. The Agency responded to Complainant that her documentation did not show that she met with an EEO Counselor to have her EEO complaint counseled. At a minimum, Complainant provided the Agency with the above October 2013 and December 2015 emails, and she may have provided the other two referenced documents. The Agency dismissed the complaint under the doctrine of laches, finding Complainant did not exercise due diligence in pursing her complaint by allowing it to languish. It reasoned that after mediation fell through in October 2013, Complainant did not contact the EEO Office again until December 2015 (over two years) - and then only with her work contact information. The Agency found that Complainant's next contact was in August 2016, to file her EEO complaint. As recounted above, Complainant asserted that a few weeks after mediation fell through she contacted EEO Officer 1, and on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting the status of her complaint. The Agency argued on appeal that Complainant, an EEO Specialist, should know the importance of retaining correspondence in her case and did not provide copies of these emails. On appeal, Complainant argues that laches do not apply because the Agency failed to notify her of the status of her complaint, failed to issue her a notice of right to file her complaint, and indicated they were working on her complaint, allowing her to become confused. In opposition to the appeal the Agency argues that laches applies. It also represents that EEO Officer 1 was the Fort Gordon EEO Director, and is no longer employed by the Agency. ANALYSIS AND FINDINGS In support its opposition to the appeal, the Agency cites Nichols v. United States Postal Service, EEOC Appeal No. 01A60899 (Apr. 13, 2006). In Nichols, we recounted that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. We explained that laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. In Nichols, the agency acknowledged that the complainant may have received EEO counseling, but stated it had no record of his filing a formal complaint. In applying laches, we noted that the complainant waited five years after he claimed he filed his formal complaint to inquire about its status, and it was significant that he had some familiarity with the EEO process. In support of her appeal, Complainant cites Gunn v. Small Business Administration, EEOC Appeal No. 0120080844 (Apr. 24, 2010). In Gunn, the complainant contacted an agency EEO counselor in March 2005, raising allegations of discrimination. Thereafter, among other things, her case was assigned from the EEO counselor to an agency EEO Assistant Administrator, and steps were taken but not completed to assign it to an EEO counselor outside the agency. In October 2007, the complainant returned to the EEO Office and asked that her claim be processed. Instead, the agency closed her informal complaint, and later argued laches applied. We found that laches did not apply because regardless of what may have transpired after March 2015, there was no dispute that the agency failed meet its obligation to issue the complainant a notice of right to file a formal complaint after the termination of informal counseling. We found that while the complainant could certainly be faulted for not being diligent in pursing her claims, the agency was more culpable. Complainant also cites Williams v. Department of Defense, EEOC Appeal No. 0120130153 (Feb. 11, 2013). In Williams, the complainant initiated EEO counseling in May 2010, and in June 2010, the agency asked her to agree to a 60 day extension for counseling. Nevertheless, before the deadline to respond elapsed, in June 2010, the agency EEO Counselor sent the complainant by email her notice of right to file her complaint. Before the offer to extend elapsed, the complainant responded that she accepted the offer. Thereafter, in June 2010, the complainant and the EEO counselor exchanged emails about complainant amending her complaint, without mention it was closed. In July 2012, the complainant contacted the agency's EEO Office inquiring about status, and in August 2012, it responded that her pre-complaint was closed because she received her notice of right to file her complaint in June 2010, and never filed her complaint (passed the 15-day time limit). The complainant contacted the agency again in writing in August 2012, which construed this as the untimely filing of the complaint. In reversing the agency's dismissal, we found that given the counseling extension, the agency should have issued a second notice of right to file a complaint. We disagreed with the agency's argument that laches applied, explaining that the agency's actions contributed to the complainant's belief that it was continuing to process her EEO claim at the informal level. Applying the above cases, we find laches. Complainant contacted the EEO Office in May 2013, to get information on the EEO complaint process, and once there said she had another job offer and wanted to decide later if she would file a complaint. This did not trigger the Agency's obligation to issue a notice of right to file a complaint. In opposition to the appeal, the agency argues that mediation alone does not show Complainant was actively pursuing a specific claim because mediations via the EEO Office are often conducted for a variety of reasons and not just when a complainant is formally pursuing a claim of discrimination. Prior to filing her formal complaint, Complainant was not assigned an Agency docket number, which the Agency suggested was its practice when there is an intention to file a complaint. The mediation email contains no docket number. While Complainant contends through her attorney that around November 2013, she contacted EEO Officer 1 and was told they were working on her complaint, there is no documentation of this, and given the timing of this alleged exchange it could have been about mediation. Unlike Gunn and Williams, there is a question on whether Complainant should have been given a notice of right to file a complaint. Complainant's next documented contact with the EEO Office was in October 2015, when she merely updated her contact information. By December 2015, Complainant was an EEO Specialist in an EEO Office working as an Affirmative Program Manager, and hence more likely than not was very familiar with the EEO process, which weighs against her on culpability on delay. She next contacted the EEO Office close to or in the Summer of 2016. We find that culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint, and hence laches apply. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 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 April 25, 2017 __________________ Date 2 Complainant wrote in her complaint that while she had no clear evidence, she believed S1 was responsible for her receiving memos on May 20, 2013 and September 13, 2013, rescinding offers made to her on May 17, 2013, for Supervisory Health System Specialist (PEBLO), GS-12, and September 6, 2013, for Human Resources Specialist (Military), GS-11 "due to administrative error." The Agency did not capture these claims in its FAD, and Complainant does not mention them on appeal. ------------------------------------------------------------ ------------------------------------------------------------	[ "Gunn v. Small Business Administration, EEOC Appeal No. 0120080844 (Apr. 24, 2010)", "Williams v. Department of Defense, EEOC Appeal No. 0120130153 (Feb. 11, 2013)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.12256104499101639, 0.1021457239985466, 0.010130219161510468, 0.03165602684020996, 0.0051069241017103195, 0.04487345740199089, 0.03021984174847603, -0.052158553153276443, -0.049271952360868454, 0.036838144063949585, -0.028510775417089462, -0.03367562219500542, -0.006940967403352261, -0.0...
6	https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019001085.pdf	2019001085.pdf	PDF	application/pdf	30,326	Kenny C.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.	August 27, 2018	Appeal Number: 2019001085 Background: During the period at issue, Complainant worked as a n EEO Specialist at the Agency’s 502 nd Air Base Wing, Joint Base San Antonio at Fort (Ft.) Sam Houston, Texas. On May 14, 2012, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on national origin ( Native American), sex (male), disability, age ( over 40), and in reprisal for prior EEO activity: 1. by his supervisor , the former EEO Directo r, when: a. on March 27, 2012, during a work discussion, she made negative and threatening remarks and innuendo related to Complainant’s EEO complaint and his livelihood; b. on March 26, 2012, Complainant was counseled for not being a team player, for “giving the impression he was 24/7;” and for asking a second time for a reasonable accommodation by distributing his five military equal opportunity (“MEO”) programs among the EEO staff; c. on March 22, 2012, Complainant was counseled for “emotionally fighting” to provide EEO service for a hospitalized airman; d. on March 16, 2012, Complainant was denied a reasonable accommodation when he asked that his five MEO programs be distributed among the EEO staff; was counseled for insubordination for providing EEO services to the aforesaid hospitalized airman, and refused to cede his EEO responsibility to substantiate the EEO incident; refused to be included in passing unconfirmed 1561 information to the Air Force Installation Commanding General; and refused to put his name on an EEO memorandum to the Commanding General which included “untrue sexual information;” e. in February 2012 and March 2012, Complainant was counseled because he refused to charge overtime pay in order to support management’s desire to increase the EEO staff ; f. between January 2011 and April 2012, except for Brook Army Medical Center (“BAMC”) training and Army complaints, no job credit was entered on Complainant’s performance document for handling five regular programs, a mediation program and a training progr am, when other EEO Specialists handled only EEO complaints; g. between March 2011 and March 2012, Complainant was the only individual assigned MEO programs who was told to advise customers and commanders that he would not be providing MEO services; was not provided valid job standards or a position description; was not counseled on a regular basis regarding his position description, performance or performance standards; and was not counseled on a regular basis regarding his Army EEO complaint performance “whi ch were duties beyond [his] Agency GS -11 EO duties;” h. between January 2011 and March 2012, he was not provided help with the five MEO programs, and was instructed at various times to let the programs fail; i. from June 2010 to March 2012, he was not given valid job standards or a position description; his disability limitations were not respected while other employees’ limitations were; he was told that he was not [supervisor’s] first choice to fill his position; he was asked many times if he wanted to retire; he was rarely given professional performance counseling to increase his chances for success; was rarely provided overtime for working on the five MEO programs, while others in the office were allowed to work overtime; and he was “whacked” by superviso r upon her depa rture; j. on April 3, 2012, he became aware that he had been disciplined for insubordination for providing EEO service to the aforementioned airman, who had asked for assistance with her sexual harassment/sexual assault claims; and k. as of Apr il 9, 2012, he had not been removed from a hostile work environment, where he was unable to talk to the EEO Co unselor handling his claim ,without the former EEO Director being present; 2. By the temporary first- level supervisor (“supervisor”) when: a. on March 29, 2012, the supervisor yelled at Complainant; told him to no longer send e -mails; denied him due process in his EEO claim by conducting an inquiry into his claim; and ordered him to leave his office; b. on March 25, 2012, the supervisor told Complainant that he was waiting for his complaint so he could process it; that he (EEO Director ) was on notice; and that he would notify the proper EEO chain of command about the complaint being filed against the EEO Director; 3. Was Complainant discriminated against on his national origin, age, sex, disability, and reprisal when: a. he was subjected to an investigation/inquiry into an EEO complaint he was handling, without receiving due process that resulted in the interim Equal Opportunity and Alternative Dispute Resolution Director (“ interim director ”) issuing him a written (oral) admonishment; b. the admonishment included false information regarding his handling of the EEO complaint, including that he misaddressed an e -mail, and used terms such as “I believe,” which allegedly could indicate bias; c. the interim d irector told him that he was wrong to request that a meeting be limited to 15 minutes because Complainant had cases to work on, and needed to go to the restroom; d. the interim director asked him to conduct a training on human relations, when the supervisor would not give him his commitment to do so, and Complainant had a medical appointment conflicting with the time of the training; e. when Complainant was asked to conduct a Newcomers’ Briefing , and Complainant responded that a named Agency employee was more qualified do to the training, the interim director raised an older incident involving a named EEO Specialist ; 4. Was Complainant discriminated against based on his national origin, age, sex, disability, and reprisal when: a. management sent a legal officer, who was potential witness to his claim, with a copy of his EEO complaint document, to mediation; b. since the Joint Base San Antonio (“JBSA”) merger, the Agency had not paid him equal pay compar ed to other JBSA EEO Specialists, or other singular agency EEO Specialists, at his grade; c. between January 16018, 2013, he became aware that office workers were spying on him during conversations and writing reports, and were reporting their observations to upper management. After an investigation of the complaint, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On August 27, 2018, the AJ issued a decision by summary judgment in favor of the Agency. Based on this evidence, the AJ concluded no discrimination was established. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. It is from this decision that Complainant appeals. Legal Analysis: the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show tha t accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that management failed to provide him with a reasonabl e accommodation . Specifically, th e AJ noted that while Complainant claimed that his disabilities were not accommodated, he failed to establish how his alleged disabilities would be accommodated by reducing his workload. The AJ noted that Complainant clai med while processing a MEO complaint, he “once find himself ‘without access to [his] snacks to control [his] diabetes, and that he had been fortunate that the squadron office had sodas and snacks, Complainant failed to address why he could not simply carry snacks with him at all times, as many persons with diabetes do.” There is no evidence of record to dispute this assertion.	Kenny C.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019001085 Hearing No. 451-2014-00021X Agency No. 7A0J12016XX DECISION Complainant filed a timely appeal with this Commission from a decision issued by an EEOC Administrative Judge (AJ), dated August 27, 2018, concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a n EEO Specialist at the Agency’s 502 nd Air Base Wing, Joint Base San Antonio at Fort (Ft.) Sam Houston, Texas. On May 14, 2012, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on national origin ( Native American), sex (male), disability, age ( over 40), and in reprisal for prior EEO activity: 1. by his supervisor , the former EEO Directo r, when: a. on March 27, 2012, during a work discussion, she made negative and threatening remarks and innuendo related to Complainant’s EEO complaint and his livelihood; b. on March 26, 2012, Complainant was counseled for not being a team player, for “giving the impression he was 24/7;” and for asking a second time for a reasonable accommodation by distributing his five military equal opportunity (“MEO”) programs among the EEO staff; c. on March 22, 2012, Complainant was counseled for “emotionally fighting” to provide EEO service for a hospitalized airman; d. on March 16, 2012, Complainant was denied a reasonable accommodation when he asked that his five MEO programs be distributed among the EEO staff; was counseled for insubordination for providing EEO services to the aforesaid hospitalized airman, and refused to cede his EEO responsibility to substantiate the EEO incident; refused to be included in passing unconfirmed 1561 information to the Air Force Installation Commanding General; and refused to put his name on an EEO memorandum to the Commanding General which included “untrue sexual information;” e. in February 2012 and March 2012, Complainant was counseled because he refused to charge overtime pay in order to support management’s desire to increase the EEO staff ; f. between January 2011 and April 2012, except for Brook Army Medical Center (“BAMC”) training and Army complaints, no job credit was entered on Complainant’s performance document for handling five regular programs, a mediation program and a training progr am, when other EEO Specialists handled only EEO complaints; g. between March 2011 and March 2012, Complainant was the only individual assigned MEO programs who was told to advise customers and commanders that he would not be providing MEO services; was not provided valid job standards or a position description; was not counseled on a regular basis regarding his position description, performance or performance standards; and was not counseled on a regular basis regarding his Army EEO complaint performance “whi ch were duties beyond [his] Agency GS -11 EO duties;” h. between January 2011 and March 2012, he was not provided help with the five MEO programs, and was instructed at various times to let the programs fail; i. from June 2010 to March 2012, he was not given valid job standards or a position description; his disability limitations were not respected while other employees’ limitations were; he was told that he was not [supervisor’s] first choice to fill his position; he was asked many times if he wanted to retire; he was rarely given professional performance counseling to increase his chances for success; was rarely provided overtime for working on the five MEO programs, while others in the office were allowed to work overtime; and he was “whacked” by superviso r upon her depa rture; j. on April 3, 2012, he became aware that he had been disciplined for insubordination for providing EEO service to the aforementioned airman, who had asked for assistance with her sexual harassment/sexual assault claims; and k. as of Apr il 9, 2012, he had not been removed from a hostile work environment, where he was unable to talk to the EEO Co unselor handling his claim ,without the former EEO Director being present; 2. By the temporary first- level supervisor (“supervisor”) when: a. on March 29, 2012, the supervisor yelled at Complainant; told him to no longer send e -mails; denied him due process in his EEO claim by conducting an inquiry into his claim; and ordered him to leave his office; b. on March 25, 2012, the supervisor told Complainant that he was waiting for his complaint so he could process it; that he (EEO Director ) was on notice; and that he would notify the proper EEO chain of command about the complaint being filed against the EEO Director; 3. Was Complainant discriminated against on his national origin, age, sex, disability, and reprisal when: a. he was subjected to an investigation/inquiry into an EEO complaint he was handling, without receiving due process that resulted in the interim Equal Opportunity and Alternative Dispute Resolution Director (“ interim director ”) issuing him a written (oral) admonishment; b. the admonishment included false information regarding his handling of the EEO complaint, including that he misaddressed an e -mail, and used terms such as “I believe,” which allegedly could indicate bias; c. the interim d irector told him that he was wrong to request that a meeting be limited to 15 minutes because Complainant had cases to work on, and needed to go to the restroom; d. the interim director asked him to conduct a training on human relations, when the supervisor would not give him his commitment to do so, and Complainant had a medical appointment conflicting with the time of the training; e. when Complainant was asked to conduct a Newcomers’ Briefing , and Complainant responded that a named Agency employee was more qualified do to the training, the interim director raised an older incident involving a named EEO Specialist ; 4. Was Complainant discriminated against based on his national origin, age, sex, disability, and reprisal when: a. management sent a legal officer, who was potential witness to his claim, with a copy of his EEO complaint document, to mediation; b. since the Joint Base San Antonio (“JBSA”) merger, the Agency had not paid him equal pay compar ed to other JBSA EEO Specialists, or other singular agency EEO Specialists, at his grade; c. between January 16018, 2013, he became aware that office workers were spying on him during conversations and writing reports, and were reporting their observations to upper management. After an investigation of the complaint, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On August 27, 2018, the AJ issued a decision by summary judgment in favor of the Agency. Based on this evidence, the AJ concluded no discrimination was established. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. It is from this decision that Complainant appeals. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three -part analysis first enunciated in McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e. , that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basi s of a prohibited reason. See St. Mary’s Honor Center v. Hicks , 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be fol lowed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens , 460 U.S. 711, 713- 714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services , EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy , EEOC Petition No. 03900056 (May 31, 1990). The AJ found finding the following pertinent undisputed facts were established during the investigation of the complaint . On or around October 1, 2010, Ft. San Houston and Randolph and Lackland Air Force Bases (“AFBs”) in San Antonio, Texas, merged to form the JBSA. The Agency became the lead agent, and all Army personnel became Agency employees. While employees in the Ft. Sam Houston EEO office previously had processed only civilian EEO complaints, as Agency employees , they were expected to process both civi lian and MEO complaints. To become familiar with the Agency’s civilian and MEO complaint process, employees at the Ft. Sam Houston EEO office attended a 15- weel training course at Patrick Air Force Base in Florida. As a result of the training, there was a man power shortage in the Ft. Sam Houston EEO office, and work was backed up. During the relevant period, Complainant was employed as an EEO Specialist at the Ft. Sam Houston- JBSA EEO Office. He identified his disabilities as hiatal hernia, diabetes, an d hearing - impaired. The former EEO Director was Complainant’s first -level supervisor until she retired in April 2012. Upon the former EEO Director’s retirement, the EEO Director, who had been Complainant’s second -level supervisor, temporarily became the first -level supervisor for the Ft. Sam Houston EEO office, while maintaining his second- level supervisory duties for the Lackland and Randolph AFB EEO offices. On July 5, 2015, the supervisor was temporarily promoted to Acting JBSA EEO Director until November 13, 2012, when he was transferred from Ft. Sam Houston- JBSA. The AJ noted that in February 2012 and March 2012, Agency management asserted that none of the EEO Specialists who previously worked for the Army had received classified Agency position descriptions , and that pending an Agency audit of all positions transferred in the JBSA merger, the same standards applicable when the EEO Specialists were Army employees were still in place. Complainant asserted that the former EEO Director asked him “many times” about his plan to retire . The former EEO Director (Mexican -American, female, no disability, year of birth 1958, unknown prior EEO activity) explained , however, that she asked all the EEO Specialists about their retirement plans in order to c omplete a Voluntary Early Retirement Authority/Voluntarily Separation Incentive Payments (“VERA/VSIP”) survey. The former EEO Director stated that on March 26, 2012, she issued Complainant a Memorandum of Counseling. She stated that she told Complainant that if his inappropriate behavior/conduct was not corrected, she would take disciplinary action. The Memorandum addressed Complainant’s disregard of the former EEO Director’s instructions that he was not permitted to take a complaint based on a third par ty’s request. The A J noted that the memorandum made reference to the former EEO Director and Complainant’s March 22, 2012 discussion regarding Complainant’s failure to follow her orders , and claimed that during the discussion, Complainant had used an aggr essive and threatening tone of voice . W hen the former EEO Director had told Complainant that his actions constituted insubordination, Complainant responded “ Then, write me up!” The AJ also noted that the memorandum placed Complainant on notice that he wa s not permitted to work without compensation, and that if there was a requirement for him to work extra hours, prior to working outside his tour of duty, he must request authorization for overtime compensation. Complainant asserted further that the former EEO Director retaliated against him when he asked for a second time for a reasonable accommodation by distributing his 5 MEO programs among other EO staff member . However, the former EEO Director asserted that Complainant never requested reasonable accom modation. She explained that employees were required to assist with all the EEO programs “but Complainant was the Lead MEO specialist. Everyone on the EEO staff was overwhelmed with the workload and it was difficult to provide any assistance to each other. The office incurred additional duties due to the Joint Base but did not receive any additional resources/positions to execute the program functions.” The former EEO Director stated that she was not present for the March 29, 2012 meeting with the newly assigned EEO Director and Complainant . However, she stated that the EEO Director inquired into Complainant’s actions which resulted in him receiving the Memorandum of Counseling. Specifically, the former EEO Director stated “it was Complainant’s opinion that he had done nothing wrong and proceeded to provide his explanation. [EEO Director] cited regulation s that contradicted Complainant’s actions and Complainant proceed to become argumentative and saying he was only doing his job and providing services to a hospitalized airman and would rather suffer a write up than to deny service.” Complainant asserted further that the former EEO Director negatively counseled him because he refused to charge overtime pay in order to prove a need to increase EO staff . The former EEO Director stated “everyone must be compensated for their work. It is illegal to allow one’s employees to labor without compensation. Moreover, it also gives [the] wrong indication of the need for manpower if the work is being done outside of the normal 40 hours work week, especially in a time when we were inundated with the additional duties that came with the Joint Base. Complainant was told on more than one occasion, not to work without compensation as I could be held responsible for all owing him to do so.” Complainant also asserted that except for BAMC training and Army complaints, the former EEO Director did not enter any job credit on his performance and that he was never provided assistance with the 5 MEO programs . However, the for mer EEO Director explained the Air Force “performance ratings are pass/fail. There are no requirements to include ‘job credit’ in the rating. Every staff member was expected to perform various functions of the EEO program. No one handled complaints only .” Further, the former EEO Director asserted that Complainant was told he would not be provided MEO service . He was told by [EEO Director] that he was no longer the ‘lead’ MEO specialist. He was still expected to assist with MEO program. Complainant was not singled out.” The record reflects that Agency management denied that it had removed Complainant from processing MEO complaints or required him to advice customers and commanders that he would not be providing MEO services. The AJ noted that during the EEO investigation, Complainant acknowledged he had been relieved only as the Lead MEO, and not of all MEO duties. The former EEO Director noted that everyone received a performance plan and received performance ratings in 2011 and that Complainant “ was not singled out; none of the staff members received newly signed performance plans. No one in the office has requested accommodations due to their impairments/disability.” Complainant also asserted that from June 2010 to March 2012, the former EEO Director provided no professional counseling, or only did so rarely , to increase his chances for success . Complainant stated that he was rarely provided overtime for his 5 MEO programs when others in the office got to work overtime, and he was “whacked” by her on her retirement departure, T he former EEO Director asserted that Complainant received feedback on a daily basis and that he “was always running things by me. Everyone has the opportunity to work overtime as long as funding is available…I issued a Memorandum of Counseling on March 26, 2012 because Complainant’s actions warranted it, not because I was retiring. Moreover, the memorandum was not even part of his Official Personnel File. It was part of his supervisor’s file.” Finally, the former EEO Director denied Complainant’s claim that she showed favoritism among staff members under her supervisor. She explained “I have known and worked with a few of the staff members in another agency for more than ten years, so there may be a perception of camaraderie, but it did not interfere with my decisions as a supervisor and equal opportunities for all employees.” The supervisor (Irish/English/Portuguese male, year of birth 1958) stated that on March 29, 2012, he and the former EEO Director met with Complainant “to advise him that we had his complaint and that I had made contact with HQ AETC regarding his allegations. This was not an investigation. I did not ‘Yell’ at [Complainant]. Just like I did not order [Complainant] to take leave. I suggested he take leave only if he wanted it. Immediately, [Complainant] turned my statement into something that I did not say as witnessed by [former EEO Director]...indeed [Complainant] stated that I had ordered h im to take leave. This is not true and again an example of how he changes what’s said or occurs around him.” The supervisor asserted that while he does not possess information to Complainant’s claims against the EO/ADR Director but “I can attest to the f act that [former EEO Director] and [EO/ADR Director] performed their jobs admirably and without prejudice or discriminatory practices while assigned to the Joi nt Base environment. JBSA is a very challenging assignment and as mentioned earlier the FSH EO o ffice is complex.” The interim director (Hispanic male, year of birth 1964) stated that while he does not have any knowledge in an investigation by the EEO Director involving Complainant not receiving due process regarding his complaint “however, I did is sue a written (oral) admonishment to [Complainant] on the recommendation of [civilian personnel] as a result of concerns with [Complainant’s] work performance and unprofessional actions.” Specifically, the interim director stated at that time Complaina nt was working on a case and he received phone calls about inappropriate actions by Complainant. He noted there were comments “where it appeared [Complainant] was not maintaining neutrality and interjecting what, in his mind, he believed based on his personal opinion and what would be best for management, employee, civilian personnel, and legal folks . This was alarming because our role as EO specialist was to be neutral and not exhibit what could be construed as taking sides or not being impartial. This type of behavior could be detrimental to the EO program. My role as the interim JBSA EO Director was to maintain and build on credibility for the overall program.” Regarding Complainant’s allegation that the interim director told him he was wrong to requ est a meeting be limited to 15 minutes when he had cases to work and needed to go to the restroom, the interim director explained that the allegation as stated “is not correct as they were two separate incidents. One incident related to [Complainant] requ esting limiting a meeting to 15 minutes and the other was [Complainant] needing to go to the restroom.” He asked the EEO Specialist to email the staff he wanted to meet everyone on August 17, 2012. Complainant responded to the EEO Specialist’s email stating that he has a lot of things to take care of and was wondering if the meeting would be 15 minutes long. Further, the interim director stated that he responded to Complainant’s email stating it was important to meet so everyone can discuss any concerns and recommendations to improve the work environment for JBSA EO. He stated “at no point did I ever say [Complainant] was wrong to request the meeting be limited.” The interim director stated that during the meeting, Complainant mentioned he had to go t o the bathroom and “no one denied him an opportunity to use the bathroom.” The interim director stated that the EEO Specialist emailed the staff notifying them there would be a meeting on September 11, 2012, and Complainant responded stating he was busy a nd asked if she could keep the meeting for fifteen minutes. The interim director noted that the EEO Specialist was frustrated with Complainant because it was the second time he challenged the length of a staff meeting and “was becoming problematic. [EEO Specialist] said [Complainant’s] negativity was impacting an already stressful and overworked team…the oral admonishment was what was warranted.” With respect to Complainant’s allegation that since the JBSA merger occurred, the Agency had not paid him equal pay to other JBSA EEO Specialists, “or other singular agency EEO specialists,” the AJ noted that there was no evidence that after the merger, Complainant’s duties became more complex “only that his duties expanded in scope and Complainant failed to demo nstrate that his alleged unequal pay was based on a protected characteristic, rather than being the salary offered to any person who occupied his position.” Regarding Complainant’s allegation that between January 16- 18, 2013, he became aware that office w orkers allegedly were spying on him during conversations and writing reports and were reporting their observations to the Acting EEO Director, the AJ noted that Complainant’s co - workers and management denied spying on Complainant and he offered no evidence to support his claim. In sum, the evidence of record fully supports the AJ’s conclusions that the responsible management officials articulated legitimate, non -discriminatory reasons for the disputed actions which Complainant failed to prove, by a prepond erance of the evidence, were pretext designed to mask discrimination or unlawful retaliation. Harassment /Hostile Work Environment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of h is protected basi s – in this case, h is national origin, sex, disability, age, and prior protected activity . Only if Complainant establishes both of those elements - hostility and motive - will the question of Agenc y liability present itself. Here, as already discussed in detail above, Complainant simply has provided no evidence to support his claim that his treatment was the result of his national origin, sex, disability, age, and prior protected activity . Complain ant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Service , EEOC Appeal No. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show tha t accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that management failed to provide him with a reasonabl e accommodation . Specifically, th e AJ noted that while Complainant claimed that his disabilities were not accommodated, he failed to establish how his alleged disabilities would be accommodated by reducing his workload. The AJ noted that Complainant clai med while processing a MEO complaint, he “once find himself ‘without access to [his] snacks to control [his] diabetes, and that he had been fortunate that the squadron office had sodas and snacks, Complainant failed to address why he could not simply carry snacks with him at all times, as many persons with diabetes do.” There is no evidence of record to dispute this assertion. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that unla wful discrimination and retaliation occurred . 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 operat ions 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 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 i n 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 February 5, 2020 Date	[ "Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990)", "Peterson v. Department of Health and Human Services , EEOC Request No. 05900467 (June 8, 1990)", "Oakley v. U.S. Postal Service , EEOC Appeal No. 01982923 (Sept. 21, 2000)", "411 U.S. 792", "438 U.S. 567", "450 U.S. 2...	[ -0.0778558999300003, 0.06697844713926315, -0.00515393540263176, 0.042516592890024185, 0.01736803539097309, 0.03569064289331436, 0.018665673211216927, -0.03361959010362625, -0.03987095504999161, 0.025553381070494652, 0.06806645542383194, 0.01358801405876875, -0.011994768865406513, 0.0056962...
7	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023002326.pdf	2023002326.pdf	PDF	application/pdf	13,887	Clay M .,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency.	February 6, 2023	Appeal Number: 2023002326 Background: During the period at issue, Complainant w as an a pplicant for a Forensic Biologist position at the U.S. Army Criminal Investigation Laboratory (USACIL) in Fort Gillem, Georgia . On July 27, 2021, Complainant, a Grade GS-13 Biologist, who then worked at the medical center at Fort Gordon, Georgia, a pplied for the Forensic Biologist position that the Agency had advertised in Job Announcement No. NCAS2NL103381U4. On August 17, 2021, USACIL management interviewed Complainant. On October 6, 2021, Complainant received notice that he was not selected. On November 9, 2021, C omplainant contacted the USACIL selecti ng official, who was the lead employee for its DNA division for feedback on his interview and application. According to Complainant, the selection official said words to the effect that she preferred examiners with less experience because they would stay with USACIL until after the selecti ng official retire d. 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 2023002326 In late November 2021, Complainant communicated with the Fort Gordon EEO Office via phone and made an inquiry about age discrimination in general. Complainant refused to provide his name and did not state that he individually intended to initiate the EEO process. On November 29, 2021, Complainant again phoned the Fort Gordon EEO Office and discussed options for filing a complaint and his fea r of reprisal for doing so. However, Complainant continued refusing to provide his name and did not inform the EEO specialist of intent to initiate the EEO process. On December 2, 2021, for a third time, Complainant called an EEO Counselor at Fort Gordon about the possibility of filing an age -based EEO complaint. During the course of that conversation, Complainant did provide his name. However, Complainant still declined to initiate the EEO process at that time. On December 2, 2022, Complainant contac ted the EEO Counselor again, who documented December 2, 2022, as the date of initial contact. The EEO Counselor’s report indicated that Complainant indicated that he intended to file an EEO complaint and that he would call back later. On December 8, 2022 , the Complainant formally expressed that he intended to initiate the EEO process. The parties did not achieve solution though informal EEO counseling. Therefore, on January 6, 2023, the Agency issued Complainant notice of his right to file a formal EEO complaint. On January 25, 2023, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on age when: a. On October 6, 2021, Complainant received Notification of Non- Selection from USAStaffing for the position of Forensic (Examiner) Biologist, Job Announcement No. NCAS2NL103381U4; and b. On November 9, 2021, the selecti ng official informed Complainant that she based her hiring decision on the longevity of the section and the selection official chose to hire a lower grade employee to ensure there were analysts to replace other USACIL employees like herself when they retire. On February 6, 2023, the Agency dismissed the formal EEO complaint as unti mely raised, pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.105(a)(1). Specifically, the Agency determined that, the applicable 45- calendar -day regulatory time limit for EEO Counselor contact had elapsed by December 24, 2021 (45 days after the November 9, 2021 conversation with the selecti ng official), bu t that Complainant did not contact the EEO Counselor to discuss his intent to pursue an EEO Complainant until December 8, 2022, almost one year beyond the deadline . The instant appeal followed. On appeal, Complainant argues that the EEO Counselor improperly supported the selecti ng official’s intention to “hire individuals who will be there longer [at USACIL].” Complainant further argued that in late November 2021, h e had made timely EEO counselor contact when he began to communicate with the Fort Gordon EEO office that ultimately processed the present matter. 3 2023002326 Complainant maintains that, during his November 2021 communications with the EEO Counselor, she told him tha t he had satisfied the requirement for timely EEO Counselor contact. However, within the same appellate brief, Complainant also accused the EEO Counselor of withholding from him about the applicable 45 -day time limit for making EEO Counselor contact. Additionally, Complainant states that the EEO Counselor misguided him and deceived him into believing that his claims could be filed any time. Finally, Complainant cited the Agency’s internal EEO regulation, AR 690- 600, in support of his argument that he ha d timely provided the EEO Counselor with sufficient identifying information and a descri ption of his grievance concerning employment discrimination. Legal Analysis: the Commission’s website. 2 2023002326 In late November 2021, Complainant communicated with the Fort Gordon EEO Office via phone and made an inquiry about age discrimination in general. Complainant refused to provide his name and did not state that he individually intended to initiate the EEO process. On November 29, 2021, Complainant again phoned the Fort Gordon EEO Office and discussed options for filing a complaint and his fea r of reprisal for doing so. However, Complainant continued refusing to provide his name and did not inform the EEO specialist of intent to initiate the EEO process. On December 2, 2021, for a third time, Complainant called an EEO Counselor at Fort Gordon about the possibility of filing an age -based EEO complaint. During the course of that conversation, Complainant did provide his name. However, Complainant still declined to initiate the EEO process at that time. On December 2, 2022, Complainant contac ted the EEO Counselor again, who documented December 2, 2022, as the date of initial contact. The EEO Counselor’s report indicated that Complainant indicated that he intended to file an EEO complaint and that he would call back later. On December 8, 2022 , the Complainant formally expressed that he intended to initiate the EEO process. The parties did not achieve solution though informal EEO counseling. Therefore, on January 6, 2023, the Agency issued Complainant notice of his right to file a formal EEO complaint. On January 25, 2023, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on age when: a. On October 6, 2021, Complainant received Notification of Non- Selection from USAStaffing for the position of Forensic (Examiner) Biologist, Job Announcement No. NCAS2NL103381U4; and b. On November 9, 2021, the selecti ng official informed Complainant that she based her hiring decision on the longevity of the section and the selection official chose to hire a lower grade employee to ensure there were analysts to replace other USACIL employees like herself when they retire. On February 6, 2023, the Agency dismissed the formal EEO complaint as unti mely raised, pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.105(a)(1). Specifically, the Agency determined that, the applicable 45- calendar -day regulatory time limit for EEO Counselor contact had elapsed by December 24, 2021 (45 days after the November 9, 2021 conversation with the selecti ng official), bu t that Complainant did not contact the EEO Counselor to discuss his intent to pursue an EEO Complainant until December 8, 2022, almost one year beyond the deadline . The instant appeal followed. On appeal, Complainant argues that the EEO Counselor improperly supported the selecti ng official’s intention to “hire individuals who will be there longer [at USACIL].” Complainant further argued that in late November 2021, h e had made timely EEO counselor contact when he began to communicate with the Fort Gordon EEO office that ultimately processed the present matter. 3 2023002326 Complainant maintains that, during his November 2021 communications with the EEO Counselor, she told him tha t he had satisfied the requirement for timely EEO Counselor contact. However, within the same appellate brief, Complainant also accused the EEO Counselor of withholding from him about the applicable 45 -day time limit for making EEO Counselor contact. Additionally, Complainant states that the EEO Counselor misguided him and deceived him into believing that his claims could be filed any time. Finally, Complainant cited the Agency’s internal EEO regulation, AR 690- 600, in support of his argument that he ha d timely provided the EEO Counselor with sufficient identifying information and a descri ption of his grievance concerning employment discrimination. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits. 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty- five calendar days of the date of the matter alleged to be discriminatory or within forty- five days of the effective date of the personnel action. The Commission has adopted a “reasonable suspicion” standard (as opposed to “supportive facts” standard) to determine when the 45- day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time l imitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. We find that Complainant reasonably suspected discrimination as a result of his deter mination that the selecti ng official made alleged ageist remarks on November 9, 2021. I t is well settled that the criterion for EEO Counselor contact is satisfied if Complainant accomplishes two steps: 1) contact with an agency official logically connecte d with the EEO process , and 2) an expression of intent to begin the EEO process. Floyd v. Nat'l Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). We acknowledge that Complainant phoned the Fort Gordon EEO office in late November 2021, on November 29, 2021 and on Decembe r 2, 2021. Complainant met the first criteria for EEO Counselor contact when he phoned the Fort Gordon EEO Office and spoke to Agency officials who were logically connected with the EEO process. However, the record indicates that Co mplainant did not express an intention to begin the discrimination complaint process until December 8, 2022, a date well beyond forty- five days after Complainant reasonably suspected discrimination on November 9, 2021. Consequently, given these circumstan ces, we must find that Complainant fai led to express requisite intent to pursue an age - based EEO complaint in his phone calls to the Fort Gordon EEO Office that had occurred in November 2021 and December 2021. EEOC regulations provide that the Agency or this Commission shall extend the time limits when the individual shows that she was not notified of the time l imits and was not otherwise aware of them, that she 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 4 2023002326 circumstances beyond her control from contact ing the EEO Counselor within the time limits, or for other reasons considered sufficient by the Agency or EEOC. On appeal, we concur with the Age ncy that Complainant does not warrant extension of the time limit for expressing intent to initiate the EEO Counselor contact. The Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998). We further reject Complainant’s contention that he was unaware or misled regarding the applicable 45- day time limit since the Agency evidence d that it gave Complainant training that included EEO processing time limits on August 27, 2021 and on July 14, 2021.	Clay M .,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2023002326 Agency No. ARGORDON23DEC00510 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 6, 2023, dismissing his complaint alleging unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant w as an a pplicant for a Forensic Biologist position at the U.S. Army Criminal Investigation Laboratory (USACIL) in Fort Gillem, Georgia . On July 27, 2021, Complainant, a Grade GS-13 Biologist, who then worked at the medical center at Fort Gordon, Georgia, a pplied for the Forensic Biologist position that the Agency had advertised in Job Announcement No. NCAS2NL103381U4. On August 17, 2021, USACIL management interviewed Complainant. On October 6, 2021, Complainant received notice that he was not selected. On November 9, 2021, C omplainant contacted the USACIL selecti ng official, who was the lead employee for its DNA division for feedback on his interview and application. According to Complainant, the selection official said words to the effect that she preferred examiners with less experience because they would stay with USACIL until after the selecti ng official retire d. 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 2023002326 In late November 2021, Complainant communicated with the Fort Gordon EEO Office via phone and made an inquiry about age discrimination in general. Complainant refused to provide his name and did not state that he individually intended to initiate the EEO process. On November 29, 2021, Complainant again phoned the Fort Gordon EEO Office and discussed options for filing a complaint and his fea r of reprisal for doing so. However, Complainant continued refusing to provide his name and did not inform the EEO specialist of intent to initiate the EEO process. On December 2, 2021, for a third time, Complainant called an EEO Counselor at Fort Gordon about the possibility of filing an age -based EEO complaint. During the course of that conversation, Complainant did provide his name. However, Complainant still declined to initiate the EEO process at that time. On December 2, 2022, Complainant contac ted the EEO Counselor again, who documented December 2, 2022, as the date of initial contact. The EEO Counselor’s report indicated that Complainant indicated that he intended to file an EEO complaint and that he would call back later. On December 8, 2022 , the Complainant formally expressed that he intended to initiate the EEO process. The parties did not achieve solution though informal EEO counseling. Therefore, on January 6, 2023, the Agency issued Complainant notice of his right to file a formal EEO complaint. On January 25, 2023, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on age when: a. On October 6, 2021, Complainant received Notification of Non- Selection from USAStaffing for the position of Forensic (Examiner) Biologist, Job Announcement No. NCAS2NL103381U4; and b. On November 9, 2021, the selecti ng official informed Complainant that she based her hiring decision on the longevity of the section and the selection official chose to hire a lower grade employee to ensure there were analysts to replace other USACIL employees like herself when they retire. On February 6, 2023, the Agency dismissed the formal EEO complaint as unti mely raised, pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.105(a)(1). Specifically, the Agency determined that, the applicable 45- calendar -day regulatory time limit for EEO Counselor contact had elapsed by December 24, 2021 (45 days after the November 9, 2021 conversation with the selecti ng official), bu t that Complainant did not contact the EEO Counselor to discuss his intent to pursue an EEO Complainant until December 8, 2022, almost one year beyond the deadline . The instant appeal followed. On appeal, Complainant argues that the EEO Counselor improperly supported the selecti ng official’s intention to “hire individuals who will be there longer [at USACIL].” Complainant further argued that in late November 2021, h e had made timely EEO counselor contact when he began to communicate with the Fort Gordon EEO office that ultimately processed the present matter. 3 2023002326 Complainant maintains that, during his November 2021 communications with the EEO Counselor, she told him tha t he had satisfied the requirement for timely EEO Counselor contact. However, within the same appellate brief, Complainant also accused the EEO Counselor of withholding from him about the applicable 45 -day time limit for making EEO Counselor contact. Additionally, Complainant states that the EEO Counselor misguided him and deceived him into believing that his claims could be filed any time. Finally, Complainant cited the Agency’s internal EEO regulation, AR 690- 600, in support of his argument that he ha d timely provided the EEO Counselor with sufficient identifying information and a descri ption of his grievance concerning employment discrimination. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits. 29 C.F.R. § 1614.105(a) (1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty- five calendar days of the date of the matter alleged to be discriminatory or within forty- five days of the effective date of the personnel action. The Commission has adopted a “reasonable suspicion” standard (as opposed to “supportive facts” standard) to determine when the 45- day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time l imitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. We find that Complainant reasonably suspected discrimination as a result of his deter mination that the selecti ng official made alleged ageist remarks on November 9, 2021. I t is well settled that the criterion for EEO Counselor contact is satisfied if Complainant accomplishes two steps: 1) contact with an agency official logically connecte d with the EEO process , and 2) an expression of intent to begin the EEO process. Floyd v. Nat'l Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). We acknowledge that Complainant phoned the Fort Gordon EEO office in late November 2021, on November 29, 2021 and on Decembe r 2, 2021. Complainant met the first criteria for EEO Counselor contact when he phoned the Fort Gordon EEO Office and spoke to Agency officials who were logically connected with the EEO process. However, the record indicates that Co mplainant did not express an intention to begin the discrimination complaint process until December 8, 2022, a date well beyond forty- five days after Complainant reasonably suspected discrimination on November 9, 2021. Consequently, given these circumstan ces, we must find that Complainant fai led to express requisite intent to pursue an age - based EEO complaint in his phone calls to the Fort Gordon EEO Office that had occurred in November 2021 and December 2021. EEOC regulations provide that the Agency or this Commission shall extend the time limits when the individual shows that she was not notified of the time l imits and was not otherwise aware of them, that she 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 4 2023002326 circumstances beyond her control from contact ing the EEO Counselor within the time limits, or for other reasons considered sufficient by the Agency or EEOC. On appeal, we concur with the Age ncy that Complainant does not warrant extension of the time limit for expressing intent to initiate the EEO Counselor contact. The Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998). We further reject Complainant’s contention that he was unaware or misled regarding the applicable 45- day time limit since the Agency evidence d that it gave Complainant training that included EEO processing time limits on August 27, 2021 and on July 14, 2021. CONCLUSION Based on the foregoing analysis, the EEOC AFFIRMS the final Agency decision dismissing Complainant's formal complaint for untimely EEO Counselor contact. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Reque sts for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of thi s decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from rece ipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 5 2023002326 Alternatively, Complainant can submit his or her request and arguments to the Dir ector, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmar k, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statemen t or brief in opposition must also include proof of service on the other party, unless Complainant files his or her reques t via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will resul t in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the time ly filing of the request. Any supporting documentation must be submitted together with the 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 S tates District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil a ction, 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 process ing 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. 6 2023002326 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 May 8, 2023 Date	[ "Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)", "Floyd v. Nat'l Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)", "EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C....	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8	https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000092.pdf	2022000092.pdf	PDF	application/pdf	26,153	Warner A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.	October 7, 2021	Appeal Number: 2022000092 Background: At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS -0671- 13, at the Agency’s VA Medical Center in Boise, Idaho. In July 2018, the Veterans Health Administration (VHA) Workforce Management and Consultant ’s Equal Employment Opportunity/Affirmative Employment (EEO/AE) Office in Washington, D .C. advertised for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN-18 (hereinafter Vacancy No. 7783) and CASA- 10257917- CLN-18 (hereinafter Vacancy No. 7917). The Director in the Equal Employment Opportunity/ Affirmative Employment Office of the Veterans Health Administration (EEO Director) , was the Selecting Official (SO) for Vacancy Announcement No. 7783. Compl ainant applied for both positions. Complainant was not selected for Vacancy No. 7783, and Vacancy No. 7917 was canceled . On November 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color ( white), and age (55), when , on September 17, 2018, and October 18, 2018, he was not selected for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN- 18 and CASA- 10257917- CLN- 18. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to dis crimination as alleged. Complainant appealed the Agency’s final decision. In EEOC Appeal No. 2020000027 (April 22, 2021), the Commission affirmed the Agency’s finding of no discrimination for Vacancy No. 7917. However, regarding Vacancy No. 7783, the Commission determined the record lacked necessary information, vacated the Agency’s finding of no discrimination, and remanded the matter to the Agency for a detailed supplemental investigation. Complainant filed a request for reconsideration of the Commission’s decision. In EEOC Request No. 2021002985 (July 27, 2021) , the Commission denied the request and re iterated the Order for the Agency to conduct a supplemental investigation regarding Vacancy No. 7783. On June 11, 2021, after completion of its supplemental investigation, the Agency’s Office of Resolution Management, Diversity and Inclusion (ORMDI) transmitted the complaint file to the Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final A gency Legal Analysis: the Commission AFF IRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS -0671- 13, at the Agency’s VA Medical Center in Boise, Idaho. In July 2018, the Veterans Health Administration (VHA) Workforce Management and Consultant ’s Equal Employment Opportunity/Affirmative Employment (EEO/AE) Office in Washington, D .C. advertised for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN-18 (hereinafter Vacancy No. 7783) and CASA- 10257917- CLN-18 (hereinafter Vacancy No. 7917). The Director in the Equal Employment Opportunity/ Affirmative Employment Office of the Veterans Health Administration (EEO Director) , was the Selecting Official (SO) for Vacancy Announcement No. 7783. Compl ainant applied for both positions. Complainant was not selected for Vacancy No. 7783, and Vacancy No. 7917 was canceled . On November 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color ( white), and age (55), when , on September 17, 2018, and October 18, 2018, he was not selected for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN- 18 and CASA- 10257917- CLN- 18. At the Final Decision: Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.	Warner A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000092 Agency No. 20DR-0010-2019100341 DECISION On October 7, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFF IRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS -0671- 13, at the Agency’s VA Medical Center in Boise, Idaho. In July 2018, the Veterans Health Administration (VHA) Workforce Management and Consultant ’s Equal Employment Opportunity/Affirmative Employment (EEO/AE) Office in Washington, D .C. advertised for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN-18 (hereinafter Vacancy No. 7783) and CASA- 10257917- CLN-18 (hereinafter Vacancy No. 7917). The Director in the Equal Employment Opportunity/ Affirmative Employment Office of the Veterans Health Administration (EEO Director) , was the Selecting Official (SO) for Vacancy Announcement No. 7783. Compl ainant applied for both positions. Complainant was not selected for Vacancy No. 7783, and Vacancy No. 7917 was canceled . On November 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color ( white), and age (55), when , on September 17, 2018, and October 18, 2018, he was not selected for two GS -14 EEO Manager positions under Vacancy Announcements No. CASA -10257783- CLN- 18 and CASA- 10257917- CLN- 18. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to dis crimination as alleged. Complainant appealed the Agency’s final decision. In EEOC Appeal No. 2020000027 (April 22, 2021), the Commission affirmed the Agency’s finding of no discrimination for Vacancy No. 7917. However, regarding Vacancy No. 7783, the Commission determined the record lacked necessary information, vacated the Agency’s finding of no discrimination, and remanded the matter to the Agency for a detailed supplemental investigation. Complainant filed a request for reconsideration of the Commission’s decision. In EEOC Request No. 2021002985 (July 27, 2021) , the Commission denied the request and re iterated the Order for the Agency to conduct a supplemental investigation regarding Vacancy No. 7783. On June 11, 2021, after completion of its supplemental investigation, the Agency’s Office of Resolution Management, Diversity and Inclusion (ORMDI) transmitted the complaint file to the Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final A gency decision. Upon review, O EDCA determined that the supplemental investigation did not fully comply with the Commission’s April 22, 2021, remand Order. On June 21, 2021, OEDCA remanded the complaint file to ORMDI for a second supplemental investigation, to ensure compliance with the Commission ’s remand Order. On August 10, 2021, after completion of its second supplemental investigation, ORMDI transmitted the compla int file to OEDCA for a final Agency decision. On October 6, 2021, OEDCA issued a final decision finding no discrimination. On October 7, 2021 Complainant filed the present appeal. Complainant filed multiple submissions in support of his appeal. Howe ver, the only timely submissions were a brief in support of his appeal filed on October 7, 2021, and a request for an expedited decision filed on November 6, 2021. The Commission's regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As such, we will only consider the arguments in Complain ant’s two timely s ubmissions . On appeal, Complainant claims that SO has not done enough to address the barriers White males face in employment. Complainant claims SO w as involved in the initial r eview of resumes for Vacancy No. 7783. He argues that SO submitted scores on applicants’ resumes to the Human Resources Specialist (HRS) because he claims SO was the only person designated to enter and submit scores to HRS. Complainant also cites the different scores in the record for his initial application rating as proof that SO was involved in the initial scoring of resumes. He argues SO admitted he did not read Complainant’s resume. Complainant a rgues he would have been selected as an “equally qualified candidate” but for rac ial discrimination. Complainant claims SO in this case is the Director of EEO and Affirmative Employment and that the Agency should have referred this case to an entity outside of the department due to a conflict of interest. Further, Complainant argues the scoring of his application should have been higher because he should have been given additional points for , in part, his Outstanding Performance ratings over the past eight years and his 10 years of GS -13 EEO Manager experience. Moreover, he notes that he had more education in the form of a B achelor of S cience (BS) in Accounting and Business and a Master of Public Administration (MPA ) than the Selectee who had a Bachelor of Fine Arts Degree in Graphic Design . The Agency f iled a brief in opposition to Complainant’s appeal. The Agency states Complainant was eliminated from the interview list for Vacancy No. 7783 by EEO Manage rs 1 and 2. The Agency claims Complainant lacked the type of qualifications that were needed for a higher s core for the position at issue such as experience serving on National Level EEO Committees, VISN Level EEO Committees, and EEO best practices or initiatives shared and implemented at the VISN or National Level. The Agency notes that Complainant f ailed to show that his qualifications were superior to the Selectee’s qualifications . The Agency acknowledges that Complainant had an impressive education; however, his academic achievements were not listed as qualifications, competencies, or preferences for the position in question. The Agency claims Complainant has nothing more than his opinion as to how his credentials surpass those of the Selectee, which does not constitute persuasive evidence of pretext. ANALYSIS AND FINDINGS As this is an appeal f rom a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the docume nts, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Agency’s Investigation and Processing of the Complaint EEOC Regulations state, in pertinent part, that the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by a complainant and defines an appropriate factual record as on e that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. § 1614.108(b). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Chap . 1, § IV.A. (Aug. 5, 2015) provides that agencies must avoid conflicts of position or conflicts of interest, as well as the appearance of such conflicts. For example, the same agency official(s) responsible for executing and advising on personnel actions may not also be responsible for mana ging, advising, or overseeing the EEO pre -complaint and complaint process. Id. EEO MD -110 Chap. 1, Chap. 9 § IV.B.2. also provides that when an employee files a complaint alleging discrimination by the EEO Director or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO office. This matter must be addressed through procedures designed to safeguard the integrity of the EEO complaint process. Id. For example, when an EEO complaint alleges that the EEO Director or a member of his/he r immediate staff discriminated, the EEO Director shall recuse himself/herself and retain a third party to conduct the counseling, and investigation and draft the final agency decision for the agency head to issue. Id. At the outset, we note that the Com mission’s previous decision remanded this matter for the Agency to provide additional information regarding the selection process for Vacancy No. 7783. As a result of the information provided in the Agency’s two supplemental investigations , we find the re cord in this case is fully developed and the matter is ripe for review . Complainant named officials at the Office of Workforce Management in Washington, D .C. as responsible management officials in the instant complaint. Specifically, in his affidavit he named SO, EEO Director, as responsible for not selecting him for Vacancy No. 7783. Upon review, we find no indication that the EEO Director tainted the EEO process and it appears that the investigation of this matte r by the ORMDI in Pittsburg h, Pennsylvania was conducted by an entit y separate from the EEO Director’s Office. Further, it appears the Agency’s final decision issued by OEDCA in Washington, D .C. was approved by an individual other than the EEO Director . Additionally , we note there is no indication that the EEO Director had any influence over the investigation or the final decision. Moreover , we find the record is sufficient ly developed for us to make a completely independent de termination regarding whether or not there was discrimination . However , the Agency is reminded it must comply with MD -110 in the future and make clear in the record that no conflict of interest exists . Cruz v. Dep’t of Defense, EEOC Appeal No. 2020000131 (July 28, 2021) , request for reconsideration denied , EEOC Request No. 2021004808 (Jan. 25, 2022) . Vacancy Announcement No. 7783 The Human Resource Specialist (HRS) assessed the submitted application materials for minimum qualifications and referred fourteen qualified candidates for consideration. The SO assigned an EEO Manager at the VA Medical Center in Washington, D .C. (EEO Manager 1) and the Lead EEO Manager at the VISN 5 VA Capital Health Care Network in Linthicum, Maryland (EEO Manager 2) to r eview and rank the fourteen qualified candidates. The five highest scoring applicants were referred for interviews. EEO Manager 1 and EEO Manager 2 rat ed the applicants using the four factors identified in the K nowledge , Skills, Abilities (KSAs) required for the job . For each KSA, applicants were assigned between one and five points. The point values were then totaled and averaged. The five highest rated applicants were referred for an interview. Complainant was not rated among the five highest scorin g applicants and thus, was not referred for an interview. An interview panel was formed to conduct initial interviews. The panel consisted of EEO Manager 1, EEO Manager 2 2, and EEO Manager 3. SO was not a member of the interview panel which conducted the first round of interview. Following the interviews for the top five applicants, the three highest scoring interviewees were referred to SO for a second interview. SO conducted the second round of interviews and the Selectee was chosen . Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental B iology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, s he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas , 411 U.S. at 802; Furn co Constr. Corp. v. Waters , 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, t he burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine , 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks , 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 715-16 (1983). 2 The record reveals that EEO Manager 2 withdrew from the interview panel due to a family emergency. Her partially completed interview scores were not used when ranking Applicants 1 - 5 during the first round of interviews. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory re ason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were moti vated by discrimination. See U.S. Postal Service Board of Governors v. Aikens , 460 U.S. 711. 713- 714 (1983); Complainant v. Department of Transportation, EEOC Reque st No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, n ondiscriminatory reasons for its actions. EEO Manager 1 and EEO Manager 2 referred the top five applicants to the first round of interviews. They determined Complainant’s application materials did not reflect the same level of expertise, skills, and expe rience as the top five applicants, particularly with respect to : national and/or VISN (Regional) level lead experience ; engaging in national level EEO workgroups, committe es, and projects ; and advising senior level management . Additionally, EEO Manager 2 found that Complainant’s resume reflected only three years of experience as an EEO Manager, “in a collateral capacity.” In an attempt to prove pretext, Complainant speculates that SO was involved in the initial rating and r anking of applicants ; however, the evidence in the record reveals that EEO Manager 1 and EEO Manager 2 performed this function, without involvement by SO. Complainant claims SO improperly failed to consider his resume. However, g iven SO was not involved in the scoring of Complainant’s application and the fact that Complainant was not referred to SO for the first round of interviews, there was no need for SO to review Complainant’s resume. Complainant’s claim that SO failed to adequately address the employ ment barriers faced by Caucasian males, without more, is insufficient to prove that the SO singled him out for nonselection based on any of his protected bases. Complainant’s scores as determined by EEO Manager 1 and EEO Manager 2 were not high enough to place him among the top five candidates. Even if Complainant is correct about some computational errors in the scoring, he still would not have placed high enough to qualify in the top five necessary to move on to the first interview stage . Reg arding his contention that he should have received more points in some of the rating categories because of his “Outstanding” performance ratings over eight of the last ten years, we note that performance ratings was not a factor given weight in the scoring . Regarding his contention t hat he had greater education than the Selectee, we find that graduate degrees were not listed as qualifications, competencies, or even preferences for the position at issue. Complainant also contends that EEO Manager 2 erred in assessing his prior work experience since she said his resume reflected three years of EEO Manager experience, but he claims his resume showed 10 years of EEO Manager experience and he attributes EEO Manager 2’s actions to be discriminatory animus. A review of Complainant’s resume shows that for the three years preceding his application, his position of record was Health System Specialist . He listed that he performed a variety of functions including serving as the facility’s EEO Manager. Complainant identified his job preceding the Health System Specialist position as an Administrative Officer which he held for approximately six years an d listed that he “performed exact same duties as listed in the above Health System Specialist position. Please refer to the Health Specialist description.” Complainant did not list any other specific EEO -related experience. In contrast, the Selectee lis ted approximately 26 years of EEO -related experience, including approximately twelve years as an EEO Manager, two years as the Director of Diversity at a private facility, five years as an EEO Specialist, and seven years as an EEO investigator. In these roles, the Selectee : developed an internal complaint process; developed a tracking tool for sexual harassment complainants; served on national EEO committees; advised senior level officials; and, conceptualized and delivered national training for VHA EEO Managers . Even if EEO Manager 2 erred in concluding that Complainant’s resume reflected only three years, as opposed to approximately nine years of related EEO experience in a collateral capacity, we find Complainant has not demons trated that his qualifications were plainly superior to those of the Selectee. Further, we find that EEO Manager 2’s decision to credit only three years of EEO Manager experience to be reasonable and not discriminatory. Further, we find Complainant has n ot shown his knowledge, skills, and experience were plainly superior to the other four applicants who were referred to the first round of interviews. The record reflects that Applicants 1 and 4 each had ten years of experience in their position of record which was EEO Manager; Applicant 3 had five years of experience where her position of record was EEO Manager; and, Applicant 2’s resume reflects two years of experience in which his position of record was EEO Manager . Their application materials do not in dicate that their EEO Manager duties were a collateral assignment – that is, in addition to the primary duties associated with their position of record – as Complainant’s r esume seem ed to indicate. The record further reflects that Applicants 1 - 4 each offered extensive experience developing national and/or VISN level EEO training, engaging in national level EEO workgroups, committees, and projects, advising senior level management, and providing EEO assessment and improvements at Agency facilities – which were the primary elements of the advertised position. Upon review, w e find Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons were untrue. We find the record does not support Complainant’s argument that SO orchestrated his nonselection because he is a W hite male, that his qualifications were superior to those possessed by the Selectee, or that discriminatory bias otherwise influenced the evaluation of his application materials . CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx . Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible po stmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her r equest via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 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 act ion, 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 cour t 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 tit led 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 March 28, 2022 Date	[ "Cruz v. Dep’t of Defense, EEOC Appeal No. 2020000131 (July 28, 2021)", "411 U.S. 792", "545 F.2d 222", "438 U.S. 567", "450 U.S. 248", "509 U.S. 502", "460 U.S. 711", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.108(b)", "29 C.F.R. § 1614....	[ -0.09409914165735245, 0.09646442532539368, 0.019623825326561928, 0.023600636050105095, 0.0007598978118039668, 0.05072972550988197, 0.007447807118296623, -0.016913196071982384, -0.0037980377674102783, 0.04186217114329338, 0.0357474759221077, -0.022125044837594032, -0.011556023731827736, 0.0...
9	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A42037_r.txt	01A42037_r.txt	TXT	text/plain	11,807	Frances Tam v. United States Postal Service 01A42037 December 17, 2004. Frances Tam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	December 17, 2004	Appeal Number: 01A42037 Case Facts: On March 12, 2003, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against on the bases of her sex (female), race (Chinese), national origin (unspecified), age (dob 9/21/54), and disability (emotional stress) when she was subjected to a hostile work environment on a continuing bases from on or about November 2001 through October 8, 2002. The agency characterized the alleged incidents as being that: (1) the Manager, Distribution Operations, threatened to issue her a letter of warning; (2) the Manager, Distribution Operations, continues to have a double standard and selective enforcement regarding a coworker. By decision dated March 20, 2003, the agency dismissed claim (1) of the complaint on the grounds of failure to state a claim and that complainant failed to initiate contact with an EEO Counselor in a timely manner, and claim (2) on the grounds of failure to initiate timely contact with an EEO Counselor. Complainant subsequently filed an appeal with the Commission. In Frances Tam v. United States Postal Service, EEOC Appeal No. 01A32893 (October 15, 2003), the Commission reversed the agency's dismissal of claim (1) on the grounds of failure to state a claim and vacated the dismissal of claims (1) and (2) on the grounds of untimely EEO contact. The Commission ordered that on remand the agency undertake a supplemental investigation to determine if complainant contacted the EEO Office concerning her harassment claim on October 9, 2002, or any time prior to January 2003. In its decision dated January 7, 2004, the agency recognized a third claim in the complaint. The agency defined the incidents in claim (3) as being that the Manager, Distribution Operations deliberately assigned tasks to complainant that could not be completed, repeatedly withheld resources and manpower necessary to complete assigned tasks, forced complainant to cover for her and complainant's coworker, and held complainant responsible for the Manager, Distribution Operations' work and the coworker's work. The agency determined that complainant initially sought EEO counseling on January 8, 2003, with regard to the alleged incidents, after the expiration of the 45-day limitation period for contacting an EEO Counselor. The agency dismissed the complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2). The agency based its decision on statements obtained from the EEO Dispute Resolution Manager and the EEO Dispute Resolution Administrative Assistant. According to the EEO Dispute Resolution Manager, she had no knowledge of complainant seeking EEO Counseling in October 2002. The Manager stated that she first became aware that complainant had contacted someone on January 10, 2003, when the Manager, Human Resources, gave her some documents that complainant had sent to her office. According to the Administrative Assistant, there is no record of a complaint filed by complainant in the EEO database and the Oakland District's records for the 2002 calendar year. The Administrative Assistant stated it is her belief that complainant did not seek EEO counseling until January 10, 2003. The agency determined that the documents that were sent to the Manager, Human Resources, were forwarded in an envelope postmarked January 8, 2003. The documents included a request from complainant to forward her claim to the EEO Office. Additionally, the agency observed that although complainant stated that she could remember the names of five different (non-EEO) counselors, medical personnel, and a social worker with whom she had either telephone or personal contact on October 9, 2002, she could not recall the name of the person she spoke to in the EEO Office. The agency further stated as to complainant's physical and mental condition on October 9, 2002, that complainant indicated that she had not slept for a period exceeding 24 hours. The agency observed that if complainant did contact an EEO Counselor on October 9, 2002, she has not explained why she waited three months before following-up on her request for EEO Counseling. The agency therefore concluded that assuming arguendo, complainant made timely EEO Counselor contact on October 9, 2002, the doctrine of laches applies because complainant made no further inquiry concerning the matter until January 8, 2003, even though complainant stated that she was told by an EEO official to expect a forms package in the mail. On appeal, complainant maintains that she contacted the EEO Office on October 9, 2002, and was informed that a note would be made of her call and documents would be mailed to her. Complainant states that since she had not received any paperwork or been contacted by the EEO Office by January 2003, she decided to send her documentation to the EEO Manager's supervisor, the Manager of Human Resources. Complainant submits a statement from her husband in support of her position that she contacted the EEO Office on October 9, 2002. According to complainant's husband, he was present when complainant called the EEO Office. He states that complainant told him when she got off the telephone that the person she spoke with told her that she would be sent a package to complete. Complainant states that in addition to the EEO Office, she also contacted on October 9, 2002, the Employee Assistance Program, her physicians, and two psychiatrists. Complainant contends that her EEO Counselor contact also should be considered timely because she alleges a continuing violation and that in January 2003, the Plant Manager denied her request for a transfer to another work location. Complainant states that this action constitutes a denial of a request for an accommodation. Legal Analysis: the Commission reversed the agency's dismissal of claim (1) on the grounds of failure to state a claim and vacated the dismissal of claims (1) and (2) on the grounds of untimely EEO contact. The Commission ordered that on remand the agency undertake a supplemental investigation to determine if complainant contacted the EEO Office concerning her harassment claim on October 9, 2002, or any time prior to January 2003. In its decision dated January 7, 2004, the agency recognized a third claim in the complaint. The agency defined the incidents in claim (3) as being that the Manager, Distribution Operations deliberately assigned tasks to complainant that could not be completed, repeatedly withheld resources and manpower necessary to complete assigned tasks, forced complainant to cover for her and complainant's coworker, and held complainant responsible for the Manager, Distribution Operations' work and the coworker's work. The agency determined that complainant initially sought EEO counseling on January 8, 2003, with regard to the alleged incidents, after the expiration of the 45-day limitation period for contacting an EEO Counselor. The agency dismissed the complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2). The agency based its decision on statements obtained from the EEO Dispute Resolution Manager and the EEO Dispute Resolution Administrative Assistant. According to the EEO Dispute Resolution Manager, she had no knowledge of complainant seeking EEO Counseling in October 2002. The Manager stated that she first became aware that complainant had contacted someone on January 10, 2003, when the Manager, Human Resources, gave her some documents that complainant had sent to her office. According to the Administrative Assistant, there is no record of a complaint filed by complainant in the EEO database and the Oakland District's records for the 2002 calendar year. The Administrative Assistant stated it is her belief that complainant did not seek EEO counseling until January 10, 2003. The agency determined that the documents that were sent to the Manager, Human Resources, were forwarded in an envelope postmarked January 8, 2003. The documents included a request from complainant to forward her claim to the EEO Office. Additionally, the agency observed that although complainant stated that she could remember the names of five different (non-EEO) counselors, medical personnel, and a social worker with whom she had either telephone or personal contact on October 9, 2002, she could not recall the name of the person she spoke to in the EEO Office. The agency further stated as to complainant's physical and mental condition on October 9, 2002, that complainant indicated that she had not slept for a period exceeding 24 hours. The agency observed that if complainant did contact an EEO Counselor on October 9, 2002, she has not explained why she waited three months before following-up on her request for EEO Counseling. The agency therefore concluded that assuming arguendo, complainant made timely EEO Counselor contact on October 9, 2002, the doctrine of laches applies because complainant made no further inquiry concerning the matter until January 8, 2003, even though complainant stated that she was told by an EEO official to expect a forms package in the mail. On appeal, complainant maintains that she contacted the EEO Office on October 9, 2002, and was informed that a note would be made of her call and documents would be mailed to her. Complainant states that since she had not received any paperwork or been contacted by the EEO Office by January 2003, she decided to send her documentation to the EEO Manager's supervisor, the Manager of Human Resources. Complainant submits a statement from her husband in support of her position that she contacted the EEO Office on October 9, 2002. According to complainant's husband, he was present when complainant called the EEO Office. He states that complainant told him when she got off the telephone that the person she spoke with told her that she would be sent a package to complete. Complainant states that in addition to the EEO Office, she also contacted on October 9, 2002, the Employee Assistance Program, her physicians, and two psychiatrists. Complainant contends that her EEO Counselor contact also should be considered timely because she alleges a continuing violation and that in January 2003, the Plant Manager denied her request for a transfer to another work location. Complainant states that this action constitutes a denial of a request for an accommodation. Upon review of the record, we find that complainant has not submitted sufficient evidence to establish that she initiated contact with an EEO Counselor on October 9, 2002. The EEO Dispute Resolution Manager stated that she had no knowledge of complainant seeking EEO counseling in October 2002. According to the EEO Dispute Resolution Administrative Assistant, there is no record of a complaint filed by complainant in the EEO database and the Oakland District's records for the 2002 calendar year. The Administrative Assistant stated that she believes that complainant did not seek EEO counseling until January 10, 2003. We note that complainant acknowledges that she does not remember the name of the EEO official that she spoke to on October 9, 2002. As for complainant's claim of a continuing violation, we observe that none of the incidents raised by complainant occurred 45 or fewer days prior to her EEO contact. Although complainant argues on appeal that her EEO contact can also be considered timely due to the denial of a transfer request dated January 7, 2003, we observe that this alleged denial of accommodation was not included as a specific claim in her complaint.<1> We find that the argument and evidence submitted by complainant fails to refute the agency's position that complainant did not initiate EEO contact until January 2003, after the expiration of the 45-day limitation period. Final Decision: Accordingly, the agency's decision dismissing complainant's complaint on the grounds of untimely EEO contact was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED.	Frances Tam v. United States Postal Service 01A42037 December 17, 2004. Frances Tam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A42037 Agency No. 1F-946-0033-03 DECISION On March 12, 2003, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against on the bases of her sex (female), race (Chinese), national origin (unspecified), age (dob 9/21/54), and disability (emotional stress) when she was subjected to a hostile work environment on a continuing bases from on or about November 2001 through October 8, 2002. The agency characterized the alleged incidents as being that: (1) the Manager, Distribution Operations, threatened to issue her a letter of warning; (2) the Manager, Distribution Operations, continues to have a double standard and selective enforcement regarding a coworker. By decision dated March 20, 2003, the agency dismissed claim (1) of the complaint on the grounds of failure to state a claim and that complainant failed to initiate contact with an EEO Counselor in a timely manner, and claim (2) on the grounds of failure to initiate timely contact with an EEO Counselor. Complainant subsequently filed an appeal with the Commission. In Frances Tam v. United States Postal Service, EEOC Appeal No. 01A32893 (October 15, 2003), the Commission reversed the agency's dismissal of claim (1) on the grounds of failure to state a claim and vacated the dismissal of claims (1) and (2) on the grounds of untimely EEO contact. The Commission ordered that on remand the agency undertake a supplemental investigation to determine if complainant contacted the EEO Office concerning her harassment claim on October 9, 2002, or any time prior to January 2003. In its decision dated January 7, 2004, the agency recognized a third claim in the complaint. The agency defined the incidents in claim (3) as being that the Manager, Distribution Operations deliberately assigned tasks to complainant that could not be completed, repeatedly withheld resources and manpower necessary to complete assigned tasks, forced complainant to cover for her and complainant's coworker, and held complainant responsible for the Manager, Distribution Operations' work and the coworker's work. The agency determined that complainant initially sought EEO counseling on January 8, 2003, with regard to the alleged incidents, after the expiration of the 45-day limitation period for contacting an EEO Counselor. The agency dismissed the complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2). The agency based its decision on statements obtained from the EEO Dispute Resolution Manager and the EEO Dispute Resolution Administrative Assistant. According to the EEO Dispute Resolution Manager, she had no knowledge of complainant seeking EEO Counseling in October 2002. The Manager stated that she first became aware that complainant had contacted someone on January 10, 2003, when the Manager, Human Resources, gave her some documents that complainant had sent to her office. According to the Administrative Assistant, there is no record of a complaint filed by complainant in the EEO database and the Oakland District's records for the 2002 calendar year. The Administrative Assistant stated it is her belief that complainant did not seek EEO counseling until January 10, 2003. The agency determined that the documents that were sent to the Manager, Human Resources, were forwarded in an envelope postmarked January 8, 2003. The documents included a request from complainant to forward her claim to the EEO Office. Additionally, the agency observed that although complainant stated that she could remember the names of five different (non-EEO) counselors, medical personnel, and a social worker with whom she had either telephone or personal contact on October 9, 2002, she could not recall the name of the person she spoke to in the EEO Office. The agency further stated as to complainant's physical and mental condition on October 9, 2002, that complainant indicated that she had not slept for a period exceeding 24 hours. The agency observed that if complainant did contact an EEO Counselor on October 9, 2002, she has not explained why she waited three months before following-up on her request for EEO Counseling. The agency therefore concluded that assuming arguendo, complainant made timely EEO Counselor contact on October 9, 2002, the doctrine of laches applies because complainant made no further inquiry concerning the matter until January 8, 2003, even though complainant stated that she was told by an EEO official to expect a forms package in the mail. On appeal, complainant maintains that she contacted the EEO Office on October 9, 2002, and was informed that a note would be made of her call and documents would be mailed to her. Complainant states that since she had not received any paperwork or been contacted by the EEO Office by January 2003, she decided to send her documentation to the EEO Manager's supervisor, the Manager of Human Resources. Complainant submits a statement from her husband in support of her position that she contacted the EEO Office on October 9, 2002. According to complainant's husband, he was present when complainant called the EEO Office. He states that complainant told him when she got off the telephone that the person she spoke with told her that she would be sent a package to complete. Complainant states that in addition to the EEO Office, she also contacted on October 9, 2002, the Employee Assistance Program, her physicians, and two psychiatrists. Complainant contends that her EEO Counselor contact also should be considered timely because she alleges a continuing violation and that in January 2003, the Plant Manager denied her request for a transfer to another work location. Complainant states that this action constitutes a denial of a request for an accommodation. Upon review of the record, we find that complainant has not submitted sufficient evidence to establish that she initiated contact with an EEO Counselor on October 9, 2002. The EEO Dispute Resolution Manager stated that she had no knowledge of complainant seeking EEO counseling in October 2002. According to the EEO Dispute Resolution Administrative Assistant, there is no record of a complaint filed by complainant in the EEO database and the Oakland District's records for the 2002 calendar year. The Administrative Assistant stated that she believes that complainant did not seek EEO counseling until January 10, 2003. We note that complainant acknowledges that she does not remember the name of the EEO official that she spoke to on October 9, 2002. As for complainant's claim of a continuing violation, we observe that none of the incidents raised by complainant occurred 45 or fewer days prior to her EEO contact. Although complainant argues on appeal that her EEO contact can also be considered timely due to the denial of a transfer request dated January 7, 2003, we observe that this alleged denial of accommodation was not included as a specific claim in her complaint.<1> We find that the argument and evidence submitted by complainant fails to refute the agency's position that complainant did not initiate EEO contact until January 2003, after the expiration of the 45-day limitation period. Accordingly, the agency's decision dismissing complainant's complaint on the grounds of untimely EEO contact was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 December 17, 2004 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ 1Complainant is advised that she should promptly contact an EEO Counselor if she intends to pursue this issue through the EEO process.	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10	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152262.r.txt	0120152262.r.txt	TXT	text/plain	17,730	Jutta A.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.	June 30, 2015	Appeal Number: 0120152262 Background: During the period at issue, Complainant worked as an Administrative Support Assistant at the Agency's Intelligence and Security Command in Fort Belvoir, Virginia. On April 16, 2015, Complainant filed the instant formal complaint. The Agency framed Complainant's claim as follows: Complainant alleged that the Agency subjected her to discrimination on the bases of race and sex. On May 22, 2015, the Agency issued a final decision dismissing 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 had initiated EEO Counselor contact on February 25, 2015, which it determined was more than forty-five days after the last alleged discriminatory event addressed above. On June 30, 2015, the Agency issued a new final decision which noted the corrected agency case number. In response to Complainant's appeal, the Agency stated that while its corrected June 30, 2015 final decision was "poorly framed, it did properly dismiss the complaint for failure to file a timely complaint of discrimination which is in accordance with 29 C.F.R. § 1614.107(a)(2)." Further, the Agency stated that while the corrected June 30, 2015 final decision does not identify any specific claims, the Agency had framed Complainant's allegations in her formal complaint to assert the following claims that she was discriminated against on the bases of race, sex and age when: a. in May 2006, she was allegedly accused by an unidentified co-worker of misappropriating funds from her office; b. in June 2008, her supervisor made an observation that she was reviewing a pornographic website at her desk; c. in August 2009, she was allegedly accused by an unidentified personnel of taking missing supplies for her own personal use; d. in May 2010, she was allegedly accused of an unidentified co-worker of downloading pornographic material; e. in October 2012, her receipt of a Department of Defense EMALL flyer that was found on the office fax machine was allegedly reported by unidentified personnel to the security office; f. in March 2013, two unidentified co-workers allegedly accused her of downloading pornographic material; g. in March 2014, an unidentified male co-worker offered her a ride to her car and when she declined he stated he thought she was "working" on the street; and h. in August 2014, she alleged that she came under scrutiny by unidentified individuals when office supplies were discovered missing. In its determination, the Agency found that Complainant initiated EEO Counselor contact on February 25, 2015, and that the EEO contact was untimely raised. The Agency found that the record reflects the following events relating to Complainant correspondence with EEO officials, which preceded the February 2015 EEO contact date. On September 26, 2014, Complainant sent an email to her supervisory chain, the EEO Manager and Affirmative Employment Program Manager (Manager). Therein, Complainant stated that she was subjected to a hostile work environment. On September 29, 2014, Complainant met with the Manager who informed her that she needed to contact the EEO office, and advised her of the time period to file an EEO complaint. On October 6, 2014, Complainant was again advised of the EEO complaint process in which she acknowledged on October 9, 2014. Complainant made email contact with the EEO office on October 14, 2014. Further, the Agency noted that in November 2014, Complainant met with the EEO Specialist but would not provide any information concerning her claims. Moreover, Complainant ultimately indicated that she wanted to await a command climate survey before proceeding with the EEO complaint process. On December 10, 2014, Complainant forwarded an email to the EEO Specialist concerning the command climate survey. The Agency noted that it was not until January 13, 2015, when Complainant again contacted the EEO Specialist stating "I would like to move forward with the EEO complaint I submitted to you." (emphasis added). The EEO Specialist responded to Complainant on February 19, 2015 stating that it was her understanding that Complainant was awaiting of the command climate survey to initiate the EEO complaint process. In support of its assertions, the Agency submitted a copy of the EEO Specialist's declaration dated August 3, 2015. Therein, the EEO Specialist stated that she clearly discussed the 45-day limitation period when she met with Complainant in November 2014 and that Complainant indicated her desire to review the results of the command climate survey before proceeding with the EEO complaint process. Specifically, the EEO Specialist stated that when she met with Complainant in November 2014, Complainant stated that she was informed by her co-workers "that derogatory comments were made about her. She stated that she was uncomfortable working around [employee] and other unidentified staff members. I explained to [Complainant] that, if she wanted to file a complaint, she would need to tell me the individuals, although she asserted they were credible sources. I again explained to her how the EEO complaint process works...[Complainant] then noted that her command was conducting a climate survey and she would wait to see if any actions would be taken once it was conducted before she would file a complaint (emphasis added)." The instant appeal followed. Legal Analysis: 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she 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 alleged discriminatory events occurred from May 2006 to August 2014. The Agency identified the initial EEO contact date as February 25, 2015. However, we find that the record supports an initial EEO contact date of January 13, 2015, which we find is nevertheless well beyond the 45-day limitation period. As we outlined above, we note various correspondence with Agency EEO officials prior to January 2015. Specifically, we note that on Friday, September 26, 2014, Complainant sent an email to her supervisory chain and the Manager stating that she was subjected to a hostile work environment. The Manager responded to Complainant's email stating that she was available to meet with Complainant that day. On Monday, September 28, 2014, Complainant responded to the Manager's email stating that she had to leave work early last Friday, September 26, 2015, but would like to meet with her. In her affidavit, the Manager stated that when they met, they discussed Complainant's "overall concerns and I explained that if she wanted to pursue her complaint she would have to contact the Fort Belvoir EEO office. I specifically noted that speaking with me did not constitute filing a complaint. I also informed her that there is a limited period to file a complaint and it must be initiated within 45 days of the alleged discriminatory act." The Manager stated that on October 6, 2014, she sent a follow up email to Complainant that emphasized the requisite time period for initiating EEO contact. The record contains a copy of the email correspondence dated October 6 and 9, 2013 between the Manager and Complainant. In her October 9, 2013 response, Complainant stated "I have not decided which endeavor I will choose right now, I know I have a very limited amount of time to make a decision...I appreciate your patience and assistance my decision will be forth coming soon." The Manager stated that while she was aware that on October 14, 2014, Complainant sent an email to the Fort Belvoir EEO office, Complainant met with the EEO Specialist on or about November 6 or 7, 2014. The record contains a copy of the EEO Specialist's affidavit. Therein, the EEO Specialist stated that on October 14, 2014, she received an email from Complainant stating that the Manager referred her to the Fort Belvoir EEO office. The EEO Specialist stated that the next day, October 15, 2015, Complainant sent another detailed email with 5 attachments. The EEO Specialist stated "because both [Complainant] and I had sick leave during this period, a meeting was not held until the first week of November. On or about November 6, 2014, I met with [Complainant]...I explained to [Complainant] that if she wanted to file a complaint, she would need to tell me the individuals who had direct knowledge of her allegations. She would not give me any names of these individuals, although she asserted that they were very credible sources." The EEO Specialist stated that she again explained to Complainant how the EEO complaint process works and that if she wanted to go forth with a complaint she would need to provide additional information but she would not provide any other information. The EEO Specialist stated that Complainant stated that her command was conducting a climate survey and preferred to wait to see if any action would taken once it was completed before filing a complaint. Further, the EEO Specialist stated that on January 13, 2015, Complainant sent her an email and "was apparently under the impression the EEO Office was conducting some type of investigation...on February 25, 2015, I met with [Complainant] and again explained the EEO process to her and she was given her rights and responsibilities and agreed to participate in mediation to resolve her issues." The EEO Specialist stated that mediation was conducted on March 31, 2015, which did not resolve Complainant's concerns, and thereafter, she was issued a Notice of the Right to File a Formal Complaint. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. A complainant satisfies the criterion of counselor contact by (a) contacting an agency official logically connected to the EEO complaint process, even if that official is not an EEO Counselor and (b) by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989); Dumaquindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We note that Complainant met the criterion for EEO Counselor contact only on January 13, 2015. Specifically, it was only on January 13, 2015, when Complainant contacted the EEO Counselor and stated that "I would like to move forward with the EEO complaint I submitted to you." We find that the January 13, 2015 date to be Complainant's initial EEO Counselor date. Complainant has not provided sufficient justification for extending or tolling the time limit. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Moreover, we note that the record reflects that Complainant acknowledged she was aware of the 45-day limitation period but elected to wait for the results of the command climate survey before proceeding with the EEO complaint process. Complainant's initial attempt to resolve the issue through the Agency procedure does not excuse an untimely EEO Counselor contact. The Commission has consistently held that use of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.2	Jutta A.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120152262 Agency No. ARBELVOIRAUG031615 DECISION Complainant filed a timely appeal with this Commission from the Agency's corrected final decision dated June 30, 2015, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Administrative Support Assistant at the Agency's Intelligence and Security Command in Fort Belvoir, Virginia. On April 16, 2015, Complainant filed the instant formal complaint. The Agency framed Complainant's claim as follows: Complainant alleged that the Agency subjected her to discrimination on the bases of race and sex. On May 22, 2015, the Agency issued a final decision dismissing 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 had initiated EEO Counselor contact on February 25, 2015, which it determined was more than forty-five days after the last alleged discriminatory event addressed above. On June 30, 2015, the Agency issued a new final decision which noted the corrected agency case number. In response to Complainant's appeal, the Agency stated that while its corrected June 30, 2015 final decision was "poorly framed, it did properly dismiss the complaint for failure to file a timely complaint of discrimination which is in accordance with 29 C.F.R. § 1614.107(a)(2)." Further, the Agency stated that while the corrected June 30, 2015 final decision does not identify any specific claims, the Agency had framed Complainant's allegations in her formal complaint to assert the following claims that she was discriminated against on the bases of race, sex and age when: a. in May 2006, she was allegedly accused by an unidentified co-worker of misappropriating funds from her office; b. in June 2008, her supervisor made an observation that she was reviewing a pornographic website at her desk; c. in August 2009, she was allegedly accused by an unidentified personnel of taking missing supplies for her own personal use; d. in May 2010, she was allegedly accused of an unidentified co-worker of downloading pornographic material; e. in October 2012, her receipt of a Department of Defense EMALL flyer that was found on the office fax machine was allegedly reported by unidentified personnel to the security office; f. in March 2013, two unidentified co-workers allegedly accused her of downloading pornographic material; g. in March 2014, an unidentified male co-worker offered her a ride to her car and when she declined he stated he thought she was "working" on the street; and h. in August 2014, she alleged that she came under scrutiny by unidentified individuals when office supplies were discovered missing. In its determination, the Agency found that Complainant initiated EEO Counselor contact on February 25, 2015, and that the EEO contact was untimely raised. The Agency found that the record reflects the following events relating to Complainant correspondence with EEO officials, which preceded the February 2015 EEO contact date. On September 26, 2014, Complainant sent an email to her supervisory chain, the EEO Manager and Affirmative Employment Program Manager (Manager). Therein, Complainant stated that she was subjected to a hostile work environment. On September 29, 2014, Complainant met with the Manager who informed her that she needed to contact the EEO office, and advised her of the time period to file an EEO complaint. On October 6, 2014, Complainant was again advised of the EEO complaint process in which she acknowledged on October 9, 2014. Complainant made email contact with the EEO office on October 14, 2014. Further, the Agency noted that in November 2014, Complainant met with the EEO Specialist but would not provide any information concerning her claims. Moreover, Complainant ultimately indicated that she wanted to await a command climate survey before proceeding with the EEO complaint process. On December 10, 2014, Complainant forwarded an email to the EEO Specialist concerning the command climate survey. The Agency noted that it was not until January 13, 2015, when Complainant again contacted the EEO Specialist stating "I would like to move forward with the EEO complaint I submitted to you." (emphasis added). The EEO Specialist responded to Complainant on February 19, 2015 stating that it was her understanding that Complainant was awaiting of the command climate survey to initiate the EEO complaint process. In support of its assertions, the Agency submitted a copy of the EEO Specialist's declaration dated August 3, 2015. Therein, the EEO Specialist stated that she clearly discussed the 45-day limitation period when she met with Complainant in November 2014 and that Complainant indicated her desire to review the results of the command climate survey before proceeding with the EEO complaint process. Specifically, the EEO Specialist stated that when she met with Complainant in November 2014, Complainant stated that she was informed by her co-workers "that derogatory comments were made about her. She stated that she was uncomfortable working around [employee] and other unidentified staff members. I explained to [Complainant] that, if she wanted to file a complaint, she would need to tell me the individuals, although she asserted they were credible sources. I again explained to her how the EEO complaint process works...[Complainant] then noted that her command was conducting a climate survey and she would wait to see if any actions would be taken once it was conducted before she would file a complaint (emphasis added)." The instant appeal followed. 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she 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 alleged discriminatory events occurred from May 2006 to August 2014. The Agency identified the initial EEO contact date as February 25, 2015. However, we find that the record supports an initial EEO contact date of January 13, 2015, which we find is nevertheless well beyond the 45-day limitation period. As we outlined above, we note various correspondence with Agency EEO officials prior to January 2015. Specifically, we note that on Friday, September 26, 2014, Complainant sent an email to her supervisory chain and the Manager stating that she was subjected to a hostile work environment. The Manager responded to Complainant's email stating that she was available to meet with Complainant that day. On Monday, September 28, 2014, Complainant responded to the Manager's email stating that she had to leave work early last Friday, September 26, 2015, but would like to meet with her. In her affidavit, the Manager stated that when they met, they discussed Complainant's "overall concerns and I explained that if she wanted to pursue her complaint she would have to contact the Fort Belvoir EEO office. I specifically noted that speaking with me did not constitute filing a complaint. I also informed her that there is a limited period to file a complaint and it must be initiated within 45 days of the alleged discriminatory act." The Manager stated that on October 6, 2014, she sent a follow up email to Complainant that emphasized the requisite time period for initiating EEO contact. The record contains a copy of the email correspondence dated October 6 and 9, 2013 between the Manager and Complainant. In her October 9, 2013 response, Complainant stated "I have not decided which endeavor I will choose right now, I know I have a very limited amount of time to make a decision...I appreciate your patience and assistance my decision will be forth coming soon." The Manager stated that while she was aware that on October 14, 2014, Complainant sent an email to the Fort Belvoir EEO office, Complainant met with the EEO Specialist on or about November 6 or 7, 2014. The record contains a copy of the EEO Specialist's affidavit. Therein, the EEO Specialist stated that on October 14, 2014, she received an email from Complainant stating that the Manager referred her to the Fort Belvoir EEO office. The EEO Specialist stated that the next day, October 15, 2015, Complainant sent another detailed email with 5 attachments. The EEO Specialist stated "because both [Complainant] and I had sick leave during this period, a meeting was not held until the first week of November. On or about November 6, 2014, I met with [Complainant]...I explained to [Complainant] that if she wanted to file a complaint, she would need to tell me the individuals who had direct knowledge of her allegations. She would not give me any names of these individuals, although she asserted that they were very credible sources." The EEO Specialist stated that she again explained to Complainant how the EEO complaint process works and that if she wanted to go forth with a complaint she would need to provide additional information but she would not provide any other information. The EEO Specialist stated that Complainant stated that her command was conducting a climate survey and preferred to wait to see if any action would taken once it was completed before filing a complaint. Further, the EEO Specialist stated that on January 13, 2015, Complainant sent her an email and "was apparently under the impression the EEO Office was conducting some type of investigation...on February 25, 2015, I met with [Complainant] and again explained the EEO process to her and she was given her rights and responsibilities and agreed to participate in mediation to resolve her issues." The EEO Specialist stated that mediation was conducted on March 31, 2015, which did not resolve Complainant's concerns, and thereafter, she was issued a Notice of the Right to File a Formal Complaint. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. A complainant satisfies the criterion of counselor contact by (a) contacting an agency official logically connected to the EEO complaint process, even if that official is not an EEO Counselor and (b) by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989); Dumaquindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We note that Complainant met the criterion for EEO Counselor contact only on January 13, 2015. Specifically, it was only on January 13, 2015, when Complainant contacted the EEO Counselor and stated that "I would like to move forward with the EEO complaint I submitted to you." We find that the January 13, 2015 date to be Complainant's initial EEO Counselor date. Complainant has not provided sufficient justification for extending or tolling the time limit. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Moreover, we note that the record reflects that Complainant acknowledged she was aware of the 45-day limitation period but elected to wait for the results of the command climate survey before proceeding with the EEO complaint process. Complainant's initial attempt to resolve the issue through the Agency procedure does not excuse an untimely EEO Counselor contact. The Commission has consistently held that use of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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 (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 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 February 3, 2016 __________________ Date 2 Because we affirm the Agency's final decision to dismiss the instant formal complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim). ------------------------------------------------------------ ------------------------------------------------------------	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)", "Dumaquindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996)", "EEO Counselor. See Ellis v. United States Postal Service, EEOC App...	[ -0.10621210187673569, 0.11126434057950974, -0.05533755570650101, 0.058589816093444824, 0.007021201774477959, 0.06158607825636864, 0.009841698221862316, -0.047808244824409485, -0.05779065191745758, 0.05104958266019821, 0.05643695965409279, -0.06320365518331528, -0.011313846334815025, -0.009...
11	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121022.txt	0120121022.txt	TXT	text/plain	9,991	Jacqueline M. Greene, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.	November 17, 2011	Appeal Number: 0120121022 Background: At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst with the Agency's MITS (Mgm - Information Technology Services), in Lanham, Maryland. On September 30, 2011, she filed a formal complaint alleging that she was discriminated against based on race (African-American), sex (female), color (Brown), age (54), and reprisal for prior protected EEO activity when on November 4, 2010, she received a performance rating of "Exceeded" rather than "Outstanding." After receiving her appraisal, Complainant asked management to reconsider it and her request was finally rejected on June 29, 2011. The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on November 4, 2010, and Complainant did not initiate EEO counseling with regard to her complaint until July 13, 2011, beyond the 45 calendar day time limit. Complainant contended that on November 23, 2010, she contacted an identified EEO Specialist, who provided her with a contact information sheet with the Agency's EEO and Diversity Field Services' toll free Care Line to raise EEO issues. She contended that she made phone calls to the number, but they would drop. On December 23, 2010, Complainant sent an email to two EEO Specialists about the dropped calls, and asked to be contacted. EEO Specialist 3 contacted her on January 4, 2011. According to the EEO counselor, the Agency's EEO database indicated that Complainant contacted EEO Specialist 3 on January 3, 2011 and April 21, 2011. The EEO counselor wrote that in each instance Complainant decided not to enter the EEO process. Below, Complainant wrote that it took her time to acknowledge and reach the conclusion that discrimination occurred, i.e., feeling she had a solid reason to think discrimination occurred. In its FAD, the Agency found that while Complainant timely made contact with individuals logically connected with the EEO process, she did not express an intention to begin the EEO process until July 13, 2011. It also found that the record showed Complainant had a reasonable suspicion of discrimination when she received her appraisal on November 4, 2010. On appeal, Complainant writes that she got mixed up with dates, and concedes she believed that she was discriminated against on November 14, 2010, when she ranked a personnel package. She writes that when after some effort she was able on January 4, 2011, to make contact with EEO Specialist 3, he informed her that a new incident date and basis was needed prior to her filing an EEO complaint, and suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. In opposition to the appeal, the Agency reiterates the findings in the FAD. It also submits notes from EEO Specialist 3 rebutting Complainant's suggestion that he discouraged her from pursing the EEO process. Specifically, EEO Specialist 3 wrote that when he met Complainant on January 4, 2011, she stated management strung her along when she challenged her performance rating; and she could not identify an incident date. He wrote Complainant did not want to file a pre-complaint, but kept him appraised by email of her ongoing efforts with management to get her rating changed.1 EEO Specialist wrote that on March 23, 2011, he contacted Complainant by email, and when she got back with him on April 21, 2011, she wrote she had been out of the office for an extended period dealing with a family emergency. He wrote that he asked Complainant to contact him again, and she did not do so. Legal Analysis: The Commission has held that EEO Counselor contact does not occur until an individual signals his intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Complainant contends that she timely initiated EEO contact on November 23, 2010, and when she finally met with EEO Specialist 3 on January 4, 2011, he suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. EEO Specialist 3's notes indicate Complainant did not want to file a pre-complaint, and did not get back to him after he contacted her again in March 2011. Based on this, we decline to equitably estop the Agency from finding Complainant failed to timely initiate EEO counseling. We find that for purposes of calculating timeliness, Complainant did not initiate EEO counseling until July 13, 2011, and hence she untimely initiated EEO counseling. Final Decision: Accordingly, in of itself, Complainant's efforts to get management to reconsider her rating did not toll her time limit to initiate EEO counseling. The Commission has held that EEO Counselor contact does not occur until an individual signals his intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Complainant contends that she timely initiated EEO contact on November 23, 2010, and when she finally met with EEO Specialist 3 on January 4, 2011, he suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. EEO Specialist 3's notes indicate Complainant did not want to file a pre-complaint, and did not get back to him after he contacted her again in March 2011. Based on this, we decline to equitably estop the Agency from finding Complainant failed to timely initiate EEO counseling. We find that for purposes of calculating timeliness, Complainant did not initiate EEO counseling until July 13, 2011, and hence she untimely initiated EEO counseling. CONCLUSION The FAD is AFFIRMED.	Jacqueline M. Greene, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120121022 Agency No. IRS-11-0627-F DECISION Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) mailed on November 17, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst with the Agency's MITS (Mgm - Information Technology Services), in Lanham, Maryland. On September 30, 2011, she filed a formal complaint alleging that she was discriminated against based on race (African-American), sex (female), color (Brown), age (54), and reprisal for prior protected EEO activity when on November 4, 2010, she received a performance rating of "Exceeded" rather than "Outstanding." After receiving her appraisal, Complainant asked management to reconsider it and her request was finally rejected on June 29, 2011. The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred on November 4, 2010, and Complainant did not initiate EEO counseling with regard to her complaint until July 13, 2011, beyond the 45 calendar day time limit. Complainant contended that on November 23, 2010, she contacted an identified EEO Specialist, who provided her with a contact information sheet with the Agency's EEO and Diversity Field Services' toll free Care Line to raise EEO issues. She contended that she made phone calls to the number, but they would drop. On December 23, 2010, Complainant sent an email to two EEO Specialists about the dropped calls, and asked to be contacted. EEO Specialist 3 contacted her on January 4, 2011. According to the EEO counselor, the Agency's EEO database indicated that Complainant contacted EEO Specialist 3 on January 3, 2011 and April 21, 2011. The EEO counselor wrote that in each instance Complainant decided not to enter the EEO process. Below, Complainant wrote that it took her time to acknowledge and reach the conclusion that discrimination occurred, i.e., feeling she had a solid reason to think discrimination occurred. In its FAD, the Agency found that while Complainant timely made contact with individuals logically connected with the EEO process, she did not express an intention to begin the EEO process until July 13, 2011. It also found that the record showed Complainant had a reasonable suspicion of discrimination when she received her appraisal on November 4, 2010. On appeal, Complainant writes that she got mixed up with dates, and concedes she believed that she was discriminated against on November 14, 2010, when she ranked a personnel package. She writes that when after some effort she was able on January 4, 2011, to make contact with EEO Specialist 3, he informed her that a new incident date and basis was needed prior to her filing an EEO complaint, and suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. In opposition to the appeal, the Agency reiterates the findings in the FAD. It also submits notes from EEO Specialist 3 rebutting Complainant's suggestion that he discouraged her from pursing the EEO process. Specifically, EEO Specialist 3 wrote that when he met Complainant on January 4, 2011, she stated management strung her along when she challenged her performance rating; and she could not identify an incident date. He wrote Complainant did not want to file a pre-complaint, but kept him appraised by email of her ongoing efforts with management to get her rating changed.1 EEO Specialist wrote that on March 23, 2011, he contacted Complainant by email, and when she got back with him on April 21, 2011, she wrote she had been out of the office for an extended period dealing with a family emergency. He wrote that he asked Complainant to contact him again, and she did not do so. ANALYSIS AND FINDINGS An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). This time limit is subject to waiver, estoppels, and equitable tolling. 29 C.F.R. § 1614.604(c). Utilization of an internal agency review or appeal mechanism does not toll EEO time limits for seeking informal counseling. Hosford v. Department of Veterans Affairs, EEOC Request No. 05890036 (June 9, 1989). Accordingly, in of itself, Complainant's efforts to get management to reconsider her rating did not toll her time limit to initiate EEO counseling. The Commission has held that EEO Counselor contact does not occur until an individual signals his intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Complainant contends that she timely initiated EEO contact on November 23, 2010, and when she finally met with EEO Specialist 3 on January 4, 2011, he suggested she meet with management about her appraisal and file an EEO complaint if it was not resolved. EEO Specialist 3's notes indicate Complainant did not want to file a pre-complaint, and did not get back to him after he contacted her again in March 2011. Based on this, we decline to equitably estop the Agency from finding Complainant failed to timely initiate EEO counseling. We find that for purposes of calculating timeliness, Complainant did not initiate EEO counseling until July 13, 2011, and hence she untimely initiated EEO counseling. CONCLUSION The FAD is AFFIRMED. 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 (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 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 April 27, 2012 __________________ Date 1 By April 2011, a manager advised Complainant that the EEO process is separate from the Performance process. ------------------------------------------------------------ ------------------------------------------------------------	[ "Hosford v. Department of Veterans Affairs, EEOC Request No. 05890036 (June 9, 1989)", "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.604(c)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "42 U.S.C. § 2000e", "29 U.S.C...	[ -0.06681109219789505, 0.09970399737358093, -0.028818050399422646, -0.001812624977901578, 0.029314234852790833, 0.10636350512504578, 0.014473270624876022, -0.014678382314741611, -0.04308171942830086, 0.05067652463912964, 0.03657010570168495, -0.022564468905329704, -0.00249262573197484, -0.0...
12	https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020004187.pdf	2020004187.pdf	PDF	application/pdf	15,125	Marquis K.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.	June 9, 2020	Appeal Number: 2020004187 Background: During the period at issue, Complainant worked as a Transportation Security Officer at the Agency’s Hartsfield Jackson International Airport facility in Atlanta, Georgia. On July 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful re taliation for engaging in prior EEO complaint activity . By letter dated August 16, 2018, the Agency accepted the formal complaint and determined that it was comprised of the following claims: 1. On March 21, 2018, management revoked Complainant’s screening duties ; and 2. On March 28, 2018, a manager threatened to terminate Complainant under the “one-step” removal process. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 3, 2020, the A gency filed a Motion to Di smiss. Therein, the Agency asserted that the formal complaint shoul d be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until May 21, 2018, outside of the applicable time period. On April 29, 2020, the AJ issued an Order of Dismissal dismissing the matter for untimely EEO Counselor contact. In her decision, the AJ noted that Complainant responded to the Agency’s Motion to Dis miss verbally during the Initial Conference. The AJ set forth that Complainant asserted that on March 29, 2018, he had contacted an EEO Counselor (EC1) from which he had received EEO Counseling on a prior EEO matter. The AJ dismissed Complainant’s complaint for untimely EEO Counselor contact reasoning as follows : Complainant contacted an EEO Counselor [EC1] he worked with for a previous case, a day after one of the alleged incidents in this complaint occurred. Approximately, two weeks later, EC1 infor med Complainant that he would need to seek separate EEO Counseling for the issues in the instant complaint. At the time Complainant received notice from [EC1] that he needed to initiate separate EEO counseling for the instant complaint, he had approximate ly 27 days remaining to meet the 45 -day regulatory deadline of May 12, 2018. Complainant did not seek EEO Counseling until May 21, 2018, 54 days after the date of the incident. The Agency issued a final action on June 9, 2020 implementing the AJ’s Order of Dismissal. The instant appeal followed. Legal Analysis: 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. In response to Complainant’s appeal, the Agency requests we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contac t. The Agency reasons: Complainant’s only contention as to why his timeliness should be excused is that he contacted an EEO Investigator [EC1] who handled one of his previous EEO complaints. However, Complainant explained during the Initial Conference in this matter that on or about April 13, 2018, [EC1] informed Complainant that he needed to seek separate EEO counseling in the claims he was asserting. Despite acknowledging being expressly informed well within the forty -five day regulatory window to ma ke separate EEO contact, Complainant inexplicably waited until May 21, 2018 to contact the Agency’s Civil Rights Office. To establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit i ntent to begin the EEO process. See Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996). O n March 29, 2018, Complainant timely initiated EEO Counselor contact by contacting someone logically connected to the EEO process with the intent to initiate the EEO process. The record contains an email from Complainant to EC1, an Agency EEO Counselor , dated March 29, 2018. The email had the subject “new allegation.” Complainant stated in the March 29, 2018 email “reprisal -3/28/2018 [a named Agenc y official]…set me down for conversation about one step removal…She made statement …I can’t work in operation….” We find that Complainant’s March 29, 2018 email was sent to an EEO Counselor (EC1), 2 thus someone logically connected to the EEO process. Co mmission records reflect that EC1 was the EEO Counselor in a prior EEO case for Complainant, Agency Case No. HS -TSA -00149- 2018, which is currently pending before us on appeal, EEOC Appeal No. 2020000423. In addition we find that this email from Complainan t exhibited an intent to begin the EEO complaint process. In his March 29, 2019 email, Complainant listed the subject of the email “new allegation,” listed the basis of reprisal and the practices at issues (being informed he could not work in the operation and being subject to the one -step removal process). While the AJ asserted that Complainant in his verbal response to the Agency’s Motion stated that EC1 informed him around April 13, 2018 via telephone that he would need to initiate separate EEO Counselin g, this does not alter our finding that Complainant’s initial EEO contact occurred on March 29, 2018 (via his email to EC1) in which he contacted someone logically connected to the EEO process with the intent to begin the EEO process. We find that EC1, an EEO Counselor, should not have told Complainant that he needed to initiate contact again bu t rather should have either opened a new EEO case for Complainant with March 29, 2018, being the date of initial EEO contact or forwarded Complainant’s email to ano ther EEO Counselor for c ounseling with March 29, 2018 be ing the initial EEO contact date. Based on the foregoing, we find that Complainant timely initiated EEO contact on March 29, 2018. 2 The A gency, in its response brief, sets forth that EC1 was an EEO Investigator in a prior EEO case for Complainant. However, Commission records for a prior EEO case of Complainant’s, Agency Case No. HS -TSA -0019- 2018, reflects that EC1 was an EEO Counselor, not an EEO Investigator .	Marquis K.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004187 Hearing No. 410-2019-00447X Agency No. HS -TSA -01804-2018 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 9, 2020, dismissing his 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 worked as a Transportation Security Officer at the Agency’s Hartsfield Jackson International Airport facility in Atlanta, Georgia. On July 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful re taliation for engaging in prior EEO complaint activity . By letter dated August 16, 2018, the Agency accepted the formal complaint and determined that it was comprised of the following claims: 1. On March 21, 2018, management revoked Complainant’s screening duties ; and 2. On March 28, 2018, a manager threatened to terminate Complainant under the “one-step” removal process. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 3, 2020, the A gency filed a Motion to Di smiss. Therein, the Agency asserted that the formal complaint shoul d be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until May 21, 2018, outside of the applicable time period. On April 29, 2020, the AJ issued an Order of Dismissal dismissing the matter for untimely EEO Counselor contact. In her decision, the AJ noted that Complainant responded to the Agency’s Motion to Dis miss verbally during the Initial Conference. The AJ set forth that Complainant asserted that on March 29, 2018, he had contacted an EEO Counselor (EC1) from which he had received EEO Counseling on a prior EEO matter. The AJ dismissed Complainant’s complaint for untimely EEO Counselor contact reasoning as follows : Complainant contacted an EEO Counselor [EC1] he worked with for a previous case, a day after one of the alleged incidents in this complaint occurred. Approximately, two weeks later, EC1 infor med Complainant that he would need to seek separate EEO Counseling for the issues in the instant complaint. At the time Complainant received notice from [EC1] that he needed to initiate separate EEO counseling for the instant complaint, he had approximate ly 27 days remaining to meet the 45 -day regulatory deadline of May 12, 2018. Complainant did not seek EEO Counseling until May 21, 2018, 54 days after the date of the incident. The Agency issued a final action on June 9, 2020 implementing the AJ’s Order of Dismissal. The instant appeal followed. 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 a personnel action, within forty -five (45) days of the effective date of the action. In response to Complainant’s appeal, the Agency requests we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contac t. The Agency reasons: Complainant’s only contention as to why his timeliness should be excused is that he contacted an EEO Investigator [EC1] who handled one of his previous EEO complaints. However, Complainant explained during the Initial Conference in this matter that on or about April 13, 2018, [EC1] informed Complainant that he needed to seek separate EEO counseling in the claims he was asserting. Despite acknowledging being expressly informed well within the forty -five day regulatory window to ma ke separate EEO contact, Complainant inexplicably waited until May 21, 2018 to contact the Agency’s Civil Rights Office. To establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit i ntent to begin the EEO process. See Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996). O n March 29, 2018, Complainant timely initiated EEO Counselor contact by contacting someone logically connected to the EEO process with the intent to initiate the EEO process. The record contains an email from Complainant to EC1, an Agency EEO Counselor , dated March 29, 2018. The email had the subject “new allegation.” Complainant stated in the March 29, 2018 email “reprisal -3/28/2018 [a named Agenc y official]…set me down for conversation about one step removal…She made statement …I can’t work in operation….” We find that Complainant’s March 29, 2018 email was sent to an EEO Counselor (EC1), 2 thus someone logically connected to the EEO process. Co mmission records reflect that EC1 was the EEO Counselor in a prior EEO case for Complainant, Agency Case No. HS -TSA -00149- 2018, which is currently pending before us on appeal, EEOC Appeal No. 2020000423. In addition we find that this email from Complainan t exhibited an intent to begin the EEO complaint process. In his March 29, 2019 email, Complainant listed the subject of the email “new allegation,” listed the basis of reprisal and the practices at issues (being informed he could not work in the operation and being subject to the one -step removal process). While the AJ asserted that Complainant in his verbal response to the Agency’s Motion stated that EC1 informed him around April 13, 2018 via telephone that he would need to initiate separate EEO Counselin g, this does not alter our finding that Complainant’s initial EEO contact occurred on March 29, 2018 (via his email to EC1) in which he contacted someone logically connected to the EEO process with the intent to begin the EEO process. We find that EC1, an EEO Counselor, should not have told Complainant that he needed to initiate contact again bu t rather should have either opened a new EEO case for Complainant with March 29, 2018, being the date of initial EEO contact or forwarded Complainant’s email to ano ther EEO Counselor for c ounseling with March 29, 2018 be ing the initial EEO contact date. Based on the foregoing, we find that Complainant timely initiated EEO contact on March 29, 2018. 2 The A gency, in its response brief, sets forth that EC1 was an EEO Investigator in a prior EEO case for Complainant. However, Commission records for a prior EEO case of Complainant’s, Agency Case No. HS -TSA -0019- 2018, reflects that EC1 was an EEO Counselor, not an EEO Investigator . Accordingly, we REVERSE the Agency’s final action implementing the AJ’s decision dismissing Complainant’s complaint EEO for untimely EEO Counselor contact and we REMAND this matter for a hearing in accordance with the ORDER below . ORDER Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC's Atlanta District Office. The Agency shall pro vide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and t he Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 a n 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this d ecision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of mater ial fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar d ays of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) ca lendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx . Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsiderati on 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) cale ndar 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 yo u 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 g rant 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 November 23, 2020 Date	[ "Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.109", "29 C.F.R. § 1614.110", "29 C.F.R. § 1614.405(c)", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.5...	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13	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000778.pdf	2019000778.pdf	PDF	application/pdf	18,424	Annalee D,1 Complainant, v. Emily W. Murphy, Adminis trator, General Services Administration, Agency.	October 10, 2018	Appeal Number: 0120170991 Case Facts: Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this conclusion, we recognize that there are a number of other activities that agency defense counsels could engage in during the pre-hearing stages that may impermissibly interfere with the pre-hearing EEO process and may not be proper or necessary to competently defend the agency. Rather than address these hypothetical activities, we have limited our Legal Analysis: EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request. ISSUE PRESENTED The issue presented is whether the underlying appellate decision involved clearly erroneous interpretations of material fact or law when it found that the Agency had undermined the integrity of the EEO process by allowing attorneys from the Office of General Counsel to assist management officials during the pre-hearing stages of the EEO process. 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. BACKGROUND 2019000778 In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018), the Commission affirmed the Agency’s final decision finding no discrimination because Complainant failed to prove that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for unlawful discrimination. While the Commission did not find discrimination on the merits of Complainant’s underlying claims, the Commission nevertheless determined that the Agency’s Office of General Counsel (OGC) had acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits. The Commission concluded that OGC’s involvement in the pre-hearing stages constituted egregious conduct, which warranted sanctions to protect the integrity of the EEO process and to preserve the necessary firewall between the Agency’s EEO program and the defensive functions of the Agency’s OGC. As such, the Commission ordered the Agency to take the following remedial action: The Agency shall provide at least four hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process. The Agency timely filed a request for reconsideration of the Commission’s decision. In its request for reconsideration, the Agency does not dispute the Commission’s finding of no discrimination regarding the merits of Complainant’s underlying claims. Rather, the Agency objects to only the portions of the decision that found it had improperly assisted management officials during the counseling and investigative stages of the EEO process and that it should be sanctioned for that assistance. ANALYSI S The Agency contends that Commission erred in finding that it had improperly assisted management officials and other witnesses during the pre-hearing stages of the EEO process. In this regard, the Agency asserts that the Commission’s Management Directive for 29 C.F.R. Part 1614 (MD -110) and appellate decisions do not clearly establish that agencies are prohibited from providing representation to its agents during EEO investigations. We agree. Overview of the Concept of Conflict of Interest in the Federal Sector Our decision in Annalee D., supra , addresses, in part, what may be referred to as an “interference” principle. This principle is addressed in MD-110, Chapter 1, § IV, “Avoiding Conflicts of Interest” and encompasses two important concepts. First, agency heads must not permit agency defense counsel to interfere with the investigation and deliberations of the EEO Office. Second, there should be separation or distance between an agency’s EEO function and 3 2019000778 its defensive function to “enhanc[e] the credibility of the [agency’s] EEO Office and the integrity of the EEO complaints process.” Id. at § IV.D. 2 The interference principle is of critical concern in the federal sector EEO complaint process because agency heads must fulfill two potentially conflicting obligations regarding their handling of employment discrimination claims. Agency heads, on the one hand, have a duty to eliminate prohibited employment discrimination within their respective agencies. On the other hand, agency heads also have an obligation to defend their agencies against legal challenges, including charges of discrimination. Pursuant to the federal anti-discrimination laws, the agency head is the defendant in all employment discrimination lawsuits in the federal courts. These competing principles come into play in the dual roles the agency head performs through the EEO Office and agency defense counsel. The EEO Office carries out the Agency Head’s statutory obligation to investigate complaints, determine their validity following an investigation or hearing, and order corrective action when appropriate. The role of agency defense counsel is to carry out the Agency Head’s obligation to defend the Agency against legal challenges, including EEO complaints. Id. at § IV. In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other. One purpose of the interference principle is to ensure that agency defense counsels do not exercise any functions that are committed to the EEO Office. For example, as stated in Chapter 1, § IV.D of MD-110, “the agency representativ e… may not conduct legal sufficiency reviews of EEO matters … such as acceptance/dismissal of complaints, legal theories utilized by the EEO Office during investigations, and legal determinations made in final agency actions …” Agency defense counsels also may not direct, control, interfere with, or overrule the activities of the EEO Office. Our Holding in the Underlying Appellate Decision Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this	Annalee D,1 Complainant, v. Emily W. Murphy, Adminis trator, General Services Administration, Agency. Request No. 2019000778 Appeal No. 0120170991 Agency No. GSA-16-CO-Q-0027 DECI SION ON REQUEST FOR RECON SIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120170991 (October 10, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request. ISSUE PRESENTED The issue presented is whether the underlying appellate decision involved clearly erroneous interpretations of material fact or law when it found that the Agency had undermined the integrity of the EEO process by allowing attorneys from the Office of General Counsel to assist management officials during the pre-hearing stages of the EEO process. 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. BACKGROUND 2019000778 In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018), the Commission affirmed the Agency’s final decision finding no discrimination because Complainant failed to prove that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for unlawful discrimination. While the Commission did not find discrimination on the merits of Complainant’s underlying claims, the Commission nevertheless determined that the Agency’s Office of General Counsel (OGC) had acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits. The Commission concluded that OGC’s involvement in the pre-hearing stages constituted egregious conduct, which warranted sanctions to protect the integrity of the EEO process and to preserve the necessary firewall between the Agency’s EEO program and the defensive functions of the Agency’s OGC. As such, the Commission ordered the Agency to take the following remedial action: The Agency shall provide at least four hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process. The Agency timely filed a request for reconsideration of the Commission’s decision. In its request for reconsideration, the Agency does not dispute the Commission’s finding of no discrimination regarding the merits of Complainant’s underlying claims. Rather, the Agency objects to only the portions of the decision that found it had improperly assisted management officials during the counseling and investigative stages of the EEO process and that it should be sanctioned for that assistance. ANALYSI S The Agency contends that Commission erred in finding that it had improperly assisted management officials and other witnesses during the pre-hearing stages of the EEO process. In this regard, the Agency asserts that the Commission’s Management Directive for 29 C.F.R. Part 1614 (MD -110) and appellate decisions do not clearly establish that agencies are prohibited from providing representation to its agents during EEO investigations. We agree. Overview of the Concept of Conflict of Interest in the Federal Sector Our decision in Annalee D., supra , addresses, in part, what may be referred to as an “interference” principle. This principle is addressed in MD-110, Chapter 1, § IV, “Avoiding Conflicts of Interest” and encompasses two important concepts. First, agency heads must not permit agency defense counsel to interfere with the investigation and deliberations of the EEO Office. Second, there should be separation or distance between an agency’s EEO function and 3 2019000778 its defensive function to “enhanc[e] the credibility of the [agency’s] EEO Office and the integrity of the EEO complaints process.” Id. at § IV.D. 2 The interference principle is of critical concern in the federal sector EEO complaint process because agency heads must fulfill two potentially conflicting obligations regarding their handling of employment discrimination claims. Agency heads, on the one hand, have a duty to eliminate prohibited employment discrimination within their respective agencies. On the other hand, agency heads also have an obligation to defend their agencies against legal challenges, including charges of discrimination. Pursuant to the federal anti-discrimination laws, the agency head is the defendant in all employment discrimination lawsuits in the federal courts. These competing principles come into play in the dual roles the agency head performs through the EEO Office and agency defense counsel. The EEO Office carries out the Agency Head’s statutory obligation to investigate complaints, determine their validity following an investigation or hearing, and order corrective action when appropriate. The role of agency defense counsel is to carry out the Agency Head’s obligation to defend the Agency against legal challenges, including EEO complaints. Id. at § IV. In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other. One purpose of the interference principle is to ensure that agency defense counsels do not exercise any functions that are committed to the EEO Office. For example, as stated in Chapter 1, § IV.D of MD-110, “the agency representativ e… may not conduct legal sufficiency reviews of EEO matters … such as acceptance/dismissal of complaints, legal theories utilized by the EEO Office during investigations, and legal determinations made in final agency actions …” Agency defense counsels also may not direct, control, interfere with, or overrule the activities of the EEO Office. Our Holding in the Underlying Appellate Decision Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this conclusion, we recognize that there are a number of other activities that agency defense counsels could engage in during the pre-hearing stages that may impermissibly interfere with the pre-hearing EEO process and may not be proper or necessary to competently defend the agency. Rather than address these hypothetical activities, we have limited our analysis to the actions of agency defense counsel in the underlying case. We also do not address the Agency’s other contentions regarding the propriety of our decision to impose sanctions because we have already determined that the underlying appellate decision involved a clearly erroneous interpretation of material fact or law on that issue for the reasons noted above. CONCLU SION After reconsidering the previous decision and the entire record, the Commission finds that the agency's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request and VACATE the imposition of sanctions. The decision of the Commission in Appeal No. 0120170991 is MODIFIED to reflect our holding herein. There 6 2019000778 is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. COMPLAINANT ’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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 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. RIGHT TO REQUEST COUN SEL (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 COMM ISSION: /s/ Bernadette B. Wilson Bernadette B. Wilson Executive Officer Executive Secretariat November 27, 2019 Date	[ "In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018)", "Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014)", "Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011)", "Hortencia R. v. Social Security Administration...	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14	https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019000778.pdf	2019000778.pdf	PDF	application/pdf	18,424	Annalee D,1 Complainant, v. Emily W. Murphy, Adminis trator, General Services Administration, Agency.	October 10, 2018	Appeal Number: 0120170991 Case Facts: Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this conclusion, we recognize that there are a number of other activities that agency defense counsels could engage in during the pre-hearing stages that may impermissibly interfere with the pre-hearing EEO process and may not be proper or necessary to competently defend the agency. Rather than address these hypothetical activities, we have limited our Legal Analysis: EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request. ISSUE PRESENTED The issue presented is whether the underlying appellate decision involved clearly erroneous interpretations of material fact or law when it found that the Agency had undermined the integrity of the EEO process by allowing attorneys from the Office of General Counsel to assist management officials during the pre-hearing stages of the EEO process. 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. BACKGROUND 2019000778 In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018), the Commission affirmed the Agency’s final decision finding no discrimination because Complainant failed to prove that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for unlawful discrimination. While the Commission did not find discrimination on the merits of Complainant’s underlying claims, the Commission nevertheless determined that the Agency’s Office of General Counsel (OGC) had acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits. The Commission concluded that OGC’s involvement in the pre-hearing stages constituted egregious conduct, which warranted sanctions to protect the integrity of the EEO process and to preserve the necessary firewall between the Agency’s EEO program and the defensive functions of the Agency’s OGC. As such, the Commission ordered the Agency to take the following remedial action: The Agency shall provide at least four hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process. The Agency timely filed a request for reconsideration of the Commission’s decision. In its request for reconsideration, the Agency does not dispute the Commission’s finding of no discrimination regarding the merits of Complainant’s underlying claims. Rather, the Agency objects to only the portions of the decision that found it had improperly assisted management officials during the counseling and investigative stages of the EEO process and that it should be sanctioned for that assistance. ANALYSI S The Agency contends that Commission erred in finding that it had improperly assisted management officials and other witnesses during the pre-hearing stages of the EEO process. In this regard, the Agency asserts that the Commission’s Management Directive for 29 C.F.R. Part 1614 (MD -110) and appellate decisions do not clearly establish that agencies are prohibited from providing representation to its agents during EEO investigations. We agree. Overview of the Concept of Conflict of Interest in the Federal Sector Our decision in Annalee D., supra , addresses, in part, what may be referred to as an “interference” principle. This principle is addressed in MD-110, Chapter 1, § IV, “Avoiding Conflicts of Interest” and encompasses two important concepts. First, agency heads must not permit agency defense counsel to interfere with the investigation and deliberations of the EEO Office. Second, there should be separation or distance between an agency’s EEO function and 3 2019000778 its defensive function to “enhanc[e] the credibility of the [agency’s] EEO Office and the integrity of the EEO complaints process.” Id. at § IV.D. 2 The interference principle is of critical concern in the federal sector EEO complaint process because agency heads must fulfill two potentially conflicting obligations regarding their handling of employment discrimination claims. Agency heads, on the one hand, have a duty to eliminate prohibited employment discrimination within their respective agencies. On the other hand, agency heads also have an obligation to defend their agencies against legal challenges, including charges of discrimination. Pursuant to the federal anti-discrimination laws, the agency head is the defendant in all employment discrimination lawsuits in the federal courts. These competing principles come into play in the dual roles the agency head performs through the EEO Office and agency defense counsel. The EEO Office carries out the Agency Head’s statutory obligation to investigate complaints, determine their validity following an investigation or hearing, and order corrective action when appropriate. The role of agency defense counsel is to carry out the Agency Head’s obligation to defend the Agency against legal challenges, including EEO complaints. Id. at § IV. In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other. One purpose of the interference principle is to ensure that agency defense counsels do not exercise any functions that are committed to the EEO Office. For example, as stated in Chapter 1, § IV.D of MD-110, “the agency representativ e… may not conduct legal sufficiency reviews of EEO matters … such as acceptance/dismissal of complaints, legal theories utilized by the EEO Office during investigations, and legal determinations made in final agency actions …” Agency defense counsels also may not direct, control, interfere with, or overrule the activities of the EEO Office. Our Holding in the Underlying Appellate Decision Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this	Annalee D,1 Complainant, v. Emily W. Murphy, Adminis trator, General Services Administration, Agency. Request No. 2019000778 Appeal No. 0120170991 Agency No. GSA-16-CO-Q-0027 DECI SION ON REQUEST FOR RECON SIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120170991 (October 10, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request. ISSUE PRESENTED The issue presented is whether the underlying appellate decision involved clearly erroneous interpretations of material fact or law when it found that the Agency had undermined the integrity of the EEO process by allowing attorneys from the Office of General Counsel to assist management officials during the pre-hearing stages of the EEO process. 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. BACKGROUND 2019000778 In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018), the Commission affirmed the Agency’s final decision finding no discrimination because Complainant failed to prove that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for unlawful discrimination. While the Commission did not find discrimination on the merits of Complainant’s underlying claims, the Commission nevertheless determined that the Agency’s Office of General Counsel (OGC) had acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits. The Commission concluded that OGC’s involvement in the pre-hearing stages constituted egregious conduct, which warranted sanctions to protect the integrity of the EEO process and to preserve the necessary firewall between the Agency’s EEO program and the defensive functions of the Agency’s OGC. As such, the Commission ordered the Agency to take the following remedial action: The Agency shall provide at least four hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process. The Agency timely filed a request for reconsideration of the Commission’s decision. In its request for reconsideration, the Agency does not dispute the Commission’s finding of no discrimination regarding the merits of Complainant’s underlying claims. Rather, the Agency objects to only the portions of the decision that found it had improperly assisted management officials during the counseling and investigative stages of the EEO process and that it should be sanctioned for that assistance. ANALYSI S The Agency contends that Commission erred in finding that it had improperly assisted management officials and other witnesses during the pre-hearing stages of the EEO process. In this regard, the Agency asserts that the Commission’s Management Directive for 29 C.F.R. Part 1614 (MD -110) and appellate decisions do not clearly establish that agencies are prohibited from providing representation to its agents during EEO investigations. We agree. Overview of the Concept of Conflict of Interest in the Federal Sector Our decision in Annalee D., supra , addresses, in part, what may be referred to as an “interference” principle. This principle is addressed in MD-110, Chapter 1, § IV, “Avoiding Conflicts of Interest” and encompasses two important concepts. First, agency heads must not permit agency defense counsel to interfere with the investigation and deliberations of the EEO Office. Second, there should be separation or distance between an agency’s EEO function and 3 2019000778 its defensive function to “enhanc[e] the credibility of the [agency’s] EEO Office and the integrity of the EEO complaints process.” Id. at § IV.D. 2 The interference principle is of critical concern in the federal sector EEO complaint process because agency heads must fulfill two potentially conflicting obligations regarding their handling of employment discrimination claims. Agency heads, on the one hand, have a duty to eliminate prohibited employment discrimination within their respective agencies. On the other hand, agency heads also have an obligation to defend their agencies against legal challenges, including charges of discrimination. Pursuant to the federal anti-discrimination laws, the agency head is the defendant in all employment discrimination lawsuits in the federal courts. These competing principles come into play in the dual roles the agency head performs through the EEO Office and agency defense counsel. The EEO Office carries out the Agency Head’s statutory obligation to investigate complaints, determine their validity following an investigation or hearing, and order corrective action when appropriate. The role of agency defense counsel is to carry out the Agency Head’s obligation to defend the Agency against legal challenges, including EEO complaints. Id. at § IV. In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other. One purpose of the interference principle is to ensure that agency defense counsels do not exercise any functions that are committed to the EEO Office. For example, as stated in Chapter 1, § IV.D of MD-110, “the agency representativ e… may not conduct legal sufficiency reviews of EEO matters … such as acceptance/dismissal of complaints, legal theories utilized by the EEO Office during investigations, and legal determinations made in final agency actions …” Agency defense counsels also may not direct, control, interfere with, or overrule the activities of the EEO Office. Our Holding in the Underlying Appellate Decision Our decision in EEOC Appeal No. 0120170991 appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters. While the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, we find that the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions. Indeed, nothing contained in MD- 110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances. There is no “bright line” regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the 2 https://www.eeoc.gov/federal/directives/md -110_chapter_1.cfm#_Toc425745112 4 2019000778 issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process. In Tammy S., we provided examples of actions that could improperly interfere with or negatively influence the EEO process. Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). In that case, the Office of General Counsel pre-interviewed witnesses prior to their interviews with the EEO investigator and attempted to intimidate complainant by threatening to cancel her pre-approved leave when scheduling her deposition. In imposing sanctions against the agency, we emphasized that it is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint, but it is another thing entirely to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by discouraging employee participation in the official business of the agency in investigating and resolving complaints of unlawful employment discrimination. We sanctioned the agency because the record showed that agency defense counsel improperly interfered with or negatively influenced the EEO process by engaging in conduct discouraging participation in official business, i.e., an EEO investigation. We determined such conduct to be egregious. Absent such egregious conduct, however, we have traditionally declined to impose sanctions where agency defense counsel only assisted in the development of affidavits during the EEO investigation. For example, in Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011), where the complainant contended that the agency's Office of General Counsel improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator, we expressly refused to address this contention. Rather, we merely reminded the agency of its obligation to protect the integrity of the EEO process. Similarly, in Hortencia R. v. Social Security Administration , EEOC Appeal No. 0120150228 (May 3, 2017) , the complainant alleged that the agency’s Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ statements before submitting them to the EEO investigator. The agency, in response, stated in that its legal representatives had informed the selecting officials that their affidavits “appeared in places to be identical, and that [the EEO Investigator] may have “cut and paste[d]” some of [the Group Supervisor’s] to [the Selecting Official’s] affidavit.” The Agency noted that the selecting officials thereafter revised their affidavits in places to reflect what they had actually told the EEO investigator but left some responses intact because they were truthful, accurate, and based on personal knowledge. There was insufficient evidence to show that the agency had improperly interfered with or negatively influenced the EEO process . We again declined to address the agency’s actions and merely reminded the agency of its obligation to protect the integrity of the EEO process. In the instant case, although we previously found that the Agency’s Office of General Counsel acted egregiously by assisting agency management officials during the pre-hearing stages of the 5 2019000778 EEO process, upon further consideration, we find that such determination involved a clearly erroneous interpretation of material fact or law. In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process. Unlike the facts in Tammy S. supra , there is no evidence in this case that the Agency’s Office of General Counsel improperly intruded upon, interfered with, or negatively influenced the EEO process. We find that the facts in this case are more akin to Rucker , supra , and Hortencia R., supra , where the Commission did not fault agency defense counsel for assist ing in the development of affidavits during the EEO investigation. In this regard, the record in the instant case shows that the investigator was able to obtain affidavits from each of the agency management officials and witnesses he or she identified. The record also shows that the Agency’s Office of General Counsel, in representing the Agency’s interests, did not impermissibly interfere with the investigator’s activities, such as by formulating the questions asked by the investigator, altering or withholding statements/records from management officials/witnesses, limiting the individuals whom the investigator could interview or otherwise directing the investigator on how to proceed. We conclude that the underlying appellate decision improperly found that the ordinary exercise of the functions of agency defense counsel constituted egregious conduct. So that our position is clear, we expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval of such changes. Agencies may also be assisted by agency defense counsel in informal resolution talks during the counseling stage so long as agency defense counsel suggests, but does not dictate, settlement terms. In reaching this conclusion, we recognize that there are a number of other activities that agency defense counsels could engage in during the pre-hearing stages that may impermissibly interfere with the pre-hearing EEO process and may not be proper or necessary to competently defend the agency. Rather than address these hypothetical activities, we have limited our analysis to the actions of agency defense counsel in the underlying case. We also do not address the Agency’s other contentions regarding the propriety of our decision to impose sanctions because we have already determined that the underlying appellate decision involved a clearly erroneous interpretation of material fact or law on that issue for the reasons noted above. CONCLU SION After reconsidering the previous decision and the entire record, the Commission finds that the agency's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the request and VACATE the imposition of sanctions. The decision of the Commission in Appeal No. 0120170991 is MODIFIED to reflect our holding herein. There 6 2019000778 is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. COMPLAINANT ’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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 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. RIGHT TO REQUEST COUN SEL (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 COMM ISSION: /s/ Bernadette B. Wilson Bernadette B. Wilson Executive Officer Executive Secretariat November 27, 2019 Date	[ "In Annalee D. v. General Services Administration , EEOC Appeal No. 0120170991 (October 10, 2018)", "Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014)", "Rucker v. Department of the Treasury , EEOC Appeal No. 0120082225 (February 4, 2011)", "Hortencia R. v. Social Security Administration...	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15	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31414_r.txt	01A31414_r.txt	TXT	text/plain	9,159	Sheila R. Crowson v. United States Postal Service 01A31414 September 30, 2003 . Sheila R. Crowson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	September 30, 2003	Appeal Number: 01A31414 Final Decision: Accordingly, the agency's decision dismissing complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED.	Sheila R. Crowson v. United States Postal Service 01A31414 September 30, 2003 . Sheila R. Crowson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A31414 Agency No. 4E-800-0157-02 DECISION On July 19, 2002, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against on the basis of her sex (female) when on (1) August 6, 2001, she received a Notice of Removal charging her with failure to follow instructions and unsatisfactory attendance; (2) on October 18, 2001, she received a last chance settlement agreement without her acknowledgment and agreement to the terms and conditions of the agreement; and (3) in December 2001, she received notification that she was officially separated from the agency. By decision dated November 13, 2002, the agency dismissed the complaint on the grounds that complainant failed to initiate contact with an EEO Counselor in a timely manner. The agency determined that complainant's EEO contact on February 22, 2002, with regard to her complaint, was after the expiration of the 45-day time limit for contacting an EEO Counselor. The agency noted that although complainant indicated that she had not seen any EEO posters identifying time frames, the Postmaster at complainant's work facility stated that EEO posters were prominently displayed at the facility and that the posters provided information concerning the appropriate official to contact regarding EEO matters as well as the prescribed time limits. On appeal, complainant contends that she initiated contact with an EEO Counselor on August 22, 2000, shortly after she had been verbally assaulted by her supervisor. Complainant states that the EEO Counselor told her on August 28, 2000, that he would investigate her claims and process her complaint. Complainant claims that she did not contact an EEO Counselor at the time of her termination because she reasonably believed that the EEO Counselor would include the termination and other acts of harassment in the investigation of her initial complaint. Complainant argues that her facility did not have information about the EEO process prominently displayed in the facility. Complainant maintains that she was never made aware of the 45-day limitation period for contacting an EEO Counselor. Complainant argues that her complaint should include all allegations of discrimination until the time of her termination in September 2001 because she was misled by the EEO Counselor regarding her EEO responsibilities and also because she has alleged a continuing violation. In support of her position that she lacked actual and constructive notice of the 45-day limitation period, complainant submits an affidavit from a coworker. According to the coworker, the only flyer with EEO information was located in an obscure place on a glass covered bulletin board by the loading dock. Complainant submits another affidavit from a union steward which states that the only EEO information that the union steward was aware of was a flyer posted by the union on its bulletin board in the break room. According to the union steward, since complainant was a letter carrier, it is unlikely that she spent any significant time in the break room. Complainant argues that her EEO contact on August 22, 2000, should render the instant complaint timely. We disagree with this position because the incidents at issue occurred in August 2001, October 2001, and December 2001. Complainant's first contact with an EEO Counselor with regard to these alleged incidents occurred on February 22, 2002, after the expiration of the 45-day limitation period. Even if complainant believed that the matters in the instant complaint would be incorporated in the prior matter that she raised with the EEO Counselor, that still does not constitute adequate justification for her delay in raising these matters with an EEO Counselor. We note that complainant claims that she was unaware of the 45-day time limit for contacting an EEO Counselor. However, the agency established that complainant had constructive notice of her responsibility to contact an EEO Counselor in prompt fashion. The record contains two memorandums dated April 29, 1999, from a Senior EEO Complaints Processing Specialist that directed management officials at complainant's facility to post an updated EEO poster in both the main office's break room and the break room at the annex. The record also contains a memorandum from the Postmaster at complainant's facility. The Postmaster states that an EEO poster is posted at various locations in both agency offices. The EEO poster provided by the agency contains instructions on how to file an EEO complaint and it sets forth a specific time period for contacting an EEO Counselor. Finally, we note that the union steward stated that an EEO poster is located in the break room at complainant's facility. We consider the presence of an EEO poster in the break room at complainant's facility to be sufficient to charge complainant with constructive notice of the 45-day limitation period for contacting an EEO Counselor. We find that complainant has not refuted the agency's position that she had constructive notice of the requirement that she promptly contact an EEO Counselor. Accordingly, the agency's decision dismissing complainant's complaint was proper pursuant to 29 C.F.R. § 1614.107(a)(2) and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 30, 2003 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.08659591525793076, 0.02599802054464817, 0.019150668755173683, 0.019755421206355095, 0.009575054049491882, -0.00948900543153286, 0.09285996109247208, -0.024093562737107277, -0.027431439608335495, 0.03436826169490814, 0.0685456246137619, 0.005171142518520355, -0.011241779662668705, -0.014...
16	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122214.txt	0120122214.txt	TXT	text/plain	13,557	Elliott Carter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.	March 15, 2012	Appeal Number: 0120122214 Background: At the time of events giving rise to this complaint Complainant worked as a Supervisory Police Officer at the Agency's Veterans Affairs Medical Center in Palo Alto, California. On January 26, 2012, he filed a formal complaint alleging that the Agency subjected him to discrimination based on his disability and age (59/60) when: 1. On December 8, 2010, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 10655AE; 2. On September 14, 2011, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 518779AE; and 3. On September 20, 2011, he was not selected for promotion to the position of Supervisory Police Officer (Temporary), vacancy announcement 536247AE. The Agency dismissed the complaint for failure to timely file the complaint and failure to timely initiate EEO counseling. On January 10, 2012, Complainant received his Notice of Right to File a Discrimination Complaint, which advised that he had 15 calendar days from its receipt to file his complaint. The notice gave the addresses of three Agency offices for filing the complaint, including one in Los Angeles where Complainant's EEO counselor was located. Complainant filed the complaint by facsimile transmission on January 26, 2012, one day beyond the 15 day deadline. The Agency found that while Complainant called its toll free number on January 26, 2012, stating the fax machine had been busy, it was unable to verify this one way or the other and Complainant did not provide any fax error transmissions, telephone records, or other evidence that the Agency's fax machine was not working, nor explain why he was prevented from timely filing his complaint by mail. When Complainant called he was provided an alternate fax number, which he successfully used that date. The Agency found that Complainant did not initiate EEO counseling until December 14, 2011, beyond the 45 calendar day time limit to do so. It conceded that on October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility. It referenced a memo signed by Complainant and the EEO Program Manager/ADR Coordinator on October 21, 2011, which explained that Complainant's contact with the EEO office that date did not fulfill the Agency's Office of Resolution Management's (ORM) requirement that he contact an ORM EEO counselor within the 45 day time limit of the occurrence, and giving the telephone number for doing so. The memo emphasized that Complainant's talking with the EEO office did not serve to extend the 45 calendar day time limit for contacting an EEO counselor. In the FAD the Agency referenced that Complainant stated he contacted the Resolution Support Center on October 21, 2011, and was encouraged to participate in mediation prior to filing an EEO complaint. According to the counselor's report Complainant participated in mediation on December 12, 2011, but resolution was not obtained. The Agency found that contacting the Resolution Support Center and attempting to informally resolve his dispute did not toll the time limit to initiate EEO counseling. On appeal Complainant explains that from early September 2011 to late January 2012 he was busy with a variety of things, i.e., assisting in the provision of hospice care for his mother-in-law, making arrangements for her internment, handling her estate, taking care of his sick wife, and moving, some of which required frequent cross country trips. Complainant writes he did not have his fax machine connected until February 2012. He indicates that on January 25, 2012, he went to AIM Mail Centers and they repeatedly attempted to file his complaint via facsimile in the above referenced Los Angeles office but the fax would not go through and he was told the number kept reading "fax full." Complainant writes that AIM refused to give him a record of the attempted facsimile, saying they would only print out a successful fax report. The record contains a copy of a fax cover sheet to the above referenced Los Angeles office dated January 25, 2012, and a receipt from AIM dated January 26, 2012, indicating successful transmission to an alternate phone number and location. Complainant also argues that he was discriminated against when he was not selected for promotion, and details the promotion process. On the non-selection in issue 2, for which there were four vacancies, Complainant writes that the selected candidates were announced on September 14, 2011. On the non-selection in issue 3 Complainant writes he was notified on September 23, 2011, via email that he was not selected. He later writes, referring to issues 2 and 3, that he was notified on December 20, 2011, that he was not selected for permanent and temporary positions. In opposition to the appeal the Agency reiterates the findings in the FAD, and adds that Complainant's claim that he was too busy to timely contact an EEO counselor is insufficient. It cites Commission case law to support the finding in the FAD that Complainant's contact with the EEO Program Manager/ADR Coordinator on October 21, 2011, did not constitute counselor contact. The Agency argues that while Complainant argues that he was notified of his non-selections in issues 2 and 3 on December 20, 2011, this is not relevant because he knew in September 2011 he was not selected for these positions. Legal Analysis: The Commission found that complainant initially contacted an EEO counselor on June 14, 2006, and hence his counselor contact was untimely. In making this finding the Commission recited case law that in order to establish EEO counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit intent to begin the EEO process. The Commission reasoned that while the EEO Program Manager complainant contacted on April 20, 2006, was logically connected to the EEO process, complainant did not exhibit an intent to begin the EEO process at that time, referring to her attorney saying he was going to file a claim with the Ohio Civil Rights Commission, and EEO Program Manager telling the attorney this was not the proper place and directing him to the ORM. While Khiaosoth is not exactly on point, its principles are applicable here. On October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility, who was logically connected to the EEO process. Both signed a memo setting out the 45 calendar day time limit to initiate EEO counseling, and that contacting this EEO office did not fulfill or extend this time limit to initiate EEO counseling, and giving the telephone number for doing so. Instead, Complainant engaged in mediation, which did not toll the time limit to initiate EEO counseling. Given these circumstances, we find that Complainant did not exhibit intent to begin the EEO process until he initiated EEO counseling on December 14, 2011. This contact was untimely because it was more than 45 calendar days after he learned of all the non-selections for promotion at issue. Complainant knew he was not selected for the position in issue 1 in December 2010, and the remaining positions by September 2011, and a later notification confirming some of this does not extend the time limit to initiate EEO counseling. Further, to the extent Complainant argues that he delayed initiating EEO counseling because he was busy this reason is insufficient, i.e., Complainant has not shown he was incapacitated from timely initiating EEO counseling. Final Decision: Accordingly, the FAD is AFFIRMED.	Elliott Carter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120122214 Agency No. 200P-0640-2012101007 DECISION Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated March 15, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint Complainant worked as a Supervisory Police Officer at the Agency's Veterans Affairs Medical Center in Palo Alto, California. On January 26, 2012, he filed a formal complaint alleging that the Agency subjected him to discrimination based on his disability and age (59/60) when: 1. On December 8, 2010, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 10655AE; 2. On September 14, 2011, he was not selected for promotion to the position of Supervisory Police Officer, vacancy announcement 518779AE; and 3. On September 20, 2011, he was not selected for promotion to the position of Supervisory Police Officer (Temporary), vacancy announcement 536247AE. The Agency dismissed the complaint for failure to timely file the complaint and failure to timely initiate EEO counseling. On January 10, 2012, Complainant received his Notice of Right to File a Discrimination Complaint, which advised that he had 15 calendar days from its receipt to file his complaint. The notice gave the addresses of three Agency offices for filing the complaint, including one in Los Angeles where Complainant's EEO counselor was located. Complainant filed the complaint by facsimile transmission on January 26, 2012, one day beyond the 15 day deadline. The Agency found that while Complainant called its toll free number on January 26, 2012, stating the fax machine had been busy, it was unable to verify this one way or the other and Complainant did not provide any fax error transmissions, telephone records, or other evidence that the Agency's fax machine was not working, nor explain why he was prevented from timely filing his complaint by mail. When Complainant called he was provided an alternate fax number, which he successfully used that date. The Agency found that Complainant did not initiate EEO counseling until December 14, 2011, beyond the 45 calendar day time limit to do so. It conceded that on October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility. It referenced a memo signed by Complainant and the EEO Program Manager/ADR Coordinator on October 21, 2011, which explained that Complainant's contact with the EEO office that date did not fulfill the Agency's Office of Resolution Management's (ORM) requirement that he contact an ORM EEO counselor within the 45 day time limit of the occurrence, and giving the telephone number for doing so. The memo emphasized that Complainant's talking with the EEO office did not serve to extend the 45 calendar day time limit for contacting an EEO counselor. In the FAD the Agency referenced that Complainant stated he contacted the Resolution Support Center on October 21, 2011, and was encouraged to participate in mediation prior to filing an EEO complaint. According to the counselor's report Complainant participated in mediation on December 12, 2011, but resolution was not obtained. The Agency found that contacting the Resolution Support Center and attempting to informally resolve his dispute did not toll the time limit to initiate EEO counseling. On appeal Complainant explains that from early September 2011 to late January 2012 he was busy with a variety of things, i.e., assisting in the provision of hospice care for his mother-in-law, making arrangements for her internment, handling her estate, taking care of his sick wife, and moving, some of which required frequent cross country trips. Complainant writes he did not have his fax machine connected until February 2012. He indicates that on January 25, 2012, he went to AIM Mail Centers and they repeatedly attempted to file his complaint via facsimile in the above referenced Los Angeles office but the fax would not go through and he was told the number kept reading "fax full." Complainant writes that AIM refused to give him a record of the attempted facsimile, saying they would only print out a successful fax report. The record contains a copy of a fax cover sheet to the above referenced Los Angeles office dated January 25, 2012, and a receipt from AIM dated January 26, 2012, indicating successful transmission to an alternate phone number and location. Complainant also argues that he was discriminated against when he was not selected for promotion, and details the promotion process. On the non-selection in issue 2, for which there were four vacancies, Complainant writes that the selected candidates were announced on September 14, 2011. On the non-selection in issue 3 Complainant writes he was notified on September 23, 2011, via email that he was not selected. He later writes, referring to issues 2 and 3, that he was notified on December 20, 2011, that he was not selected for permanent and temporary positions. In opposition to the appeal the Agency reiterates the findings in the FAD, and adds that Complainant's claim that he was too busy to timely contact an EEO counselor is insufficient. It cites Commission case law to support the finding in the FAD that Complainant's contact with the EEO Program Manager/ADR Coordinator on October 21, 2011, did not constitute counselor contact. The Agency argues that while Complainant argues that he was notified of his non-selections in issues 2 and 3 on December 20, 2011, this is not relevant because he knew in September 2011 he was not selected for these positions. ANALYSIS AND FINDINGS An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). In support of its finding that Complainant's contact with the EEO Program Manager/ADR Coordinator on October 21, 2011, did not constitute counselor contact, the Agency cites, among other cases, Khiaosoth v. Department of Veterans Affairs, EEOC Appeal No. 0120070730 (July 5, 2007). In Khiaosoth, the complainant's attorney spoke to an EEO Program Manager on April 20, 2006, who informed the attorney of the EEO process. The attorney advised the EEO Program Manager that he was going to file the claim with the Ohio Civil Rights Commission, and the EEO Program Manager directed him to the Agency's ORM, explaining that the Ohio Civil Rights Commission was not the proper place to take complainant's complaint. Nevertheless, the complainant contacted the Ohio Civil Rights Commission, and thereafter on June 14, 2006, the attorney sent a letter to an agency EEO Officer which "officially stated complainant's intention to pursue this issue through the proper agency procedures." The Commission found that complainant initially contacted an EEO counselor on June 14, 2006, and hence his counselor contact was untimely. In making this finding the Commission recited case law that in order to establish EEO counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit intent to begin the EEO process. The Commission reasoned that while the EEO Program Manager complainant contacted on April 20, 2006, was logically connected to the EEO process, complainant did not exhibit an intent to begin the EEO process at that time, referring to her attorney saying he was going to file a claim with the Ohio Civil Rights Commission, and EEO Program Manager telling the attorney this was not the proper place and directing him to the ORM. While Khiaosoth is not exactly on point, its principles are applicable here. On October 21, 2011, Complainant contacted the EEO Program Manager/ADR Coordinator in his facility, who was logically connected to the EEO process. Both signed a memo setting out the 45 calendar day time limit to initiate EEO counseling, and that contacting this EEO office did not fulfill or extend this time limit to initiate EEO counseling, and giving the telephone number for doing so. Instead, Complainant engaged in mediation, which did not toll the time limit to initiate EEO counseling. Given these circumstances, we find that Complainant did not exhibit intent to begin the EEO process until he initiated EEO counseling on December 14, 2011. This contact was untimely because it was more than 45 calendar days after he learned of all the non-selections for promotion at issue. Complainant knew he was not selected for the position in issue 1 in December 2010, and the remaining positions by September 2011, and a later notification confirming some of this does not extend the time limit to initiate EEO counseling. Further, to the extent Complainant argues that he delayed initiating EEO counseling because he was busy this reason is insufficient, i.e., Complainant has not shown he was incapacitated from timely initiating EEO counseling. Accordingly, the FAD is AFFIRMED.1 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 (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 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 October 10, 2012 __________________ Date 1 Because we have determined that Complainant failed to timely initiate EEO counseling, we need not address whether he failed to timely file his complaint. ------------------------------------------------------------ ------------------------------------------------------------	[ "Khiaosoth v. Department of Veterans Affairs, EEOC Appeal No. 0120070730 (July 5, 2007)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "29 U.S.C. § 791", "29 U.S.C. § 621", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.05097519978880882, 0.07814956456422806, -0.020454877987504005, 0.02941005490720272, 0.002510161604732275, 0.06042220816016197, 0.026486527174711227, -0.012907955795526505, -0.021217331290245056, 0.05361016467213631, 0.04477543756365776, -0.03196413815021515, -0.04311097040772438, 0.0283...
17	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01-2013-3113-0500.pdf	01-2013-3113-0500.pdf	PDF	application/pdf	14,672	, Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.	June 27, 2013	Appeal Number: 0120133113 Background: At the time of ev ents giving rise to this complaint, Complainant worked as a Claims Representative at an Agency work facility in San Francisco, California . On June 4, 2013, Complainant filed a formal complaint wherein she claimed that the Agency subjected her to discrimin atory harassment on the basis of her sex (female) when: 1. 1. 1. On December 24, 2011, Complainant’s Supervisor yelled at her in front of a claimant. 2. On June 12, 2012, the Supervisor yelled at Complainant, saying “I told you to take the interview I told you to take” and “I have asked you to put cases in EPAD and you didn’t.” 3. On June 20, 2012, the Supervisor called Complainant “stupid.” 4. On June 29, 2012, the Supervisor pointed his finger at Complainant’s chest and said “I will print a form and make you sign it.” 5. On July 10, 2012, the Supervisor forced Complainant to sign a performance evaluation Complainant knew she did not have to sign. 6. On July 11, 2012, Complainant did not receive an award for her work performance. 7. On July 13, 2012, the Supervisor stated that he could get rid of Complainant. 8. In July 2012, the Supervisor did not warn Complainant beforehand that a chair she sat in was broken, and Complainant almost fell on the floor. 9. On July 31, 2012, the Supervisor demanded to see Complainant and questioned her work. 10. On August 1, 7, 14, 30 and 31, 2012, the Supervisor questioned Complainant’s work. 11. In August 2012, the Supervisor stood close to Complainant while she was at the printer and stared at her without speaking and followed her when she moved away. 12. On September 6, 2012, Complainant witnessed the Supervisor hug and kiss the union representative. 13. On September 11, 2012, the Supervisor issued Complainant a reprimand. 14. On September 11, 2012, the Supervisor threw a piece of paper at Complainant’s lower private part. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor within 45 days of the most recent alleged discriminatory event. The Agency stated that the most recent event occurred on September 11, 2012, and that Complainant initially contacted an EEO Counselor on April 2, 2013. The Agency also dismissed claims (13 -14) pursuant to 29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant elected to pursue these claims through the Agency’s negotiated grievance procedure. According to the Agency, since the National Agreement permits allegations of discrimination, and Complainant raised the matt ers under the negotiated grievance procedure prior to filing the instant complaint, Complainant could not file an EEO complaint on the same matters. CONTENTIONS ON APPEAL On appeal, Complainant contends that she did initiate EEO contact in a timely manne r. Complainant states that she contacted the Union President on August 21, 2012, and filed a grievance regarding the harassment she was experiencing. Complainant states that on August 31, 2012, when her Supervisor came to her workspace, she made three requests to have her Union Representative present, but the Supervisor denied each request. Complainant claims that in September 2012, she called the Agen cy’s Civil Rights and Equal Opportunity Office and left a message about filing an EEO complaint against her Supervisor. Thereafter, Complainant states that on October 2, 2012, she contacted the EEO Manager. Complainant acknowledges that she did not follow through on her EEO complaint due to a medical condition that kept her out of work from September 19, 2012, to March 4, 2013. Complainant further argues that the 45 -day limitation period should be waived because she was not notified or otherwise aware of the 45- day time limit for initiating contact with an EEO Counselor. Additionally, Complainant maintains that if her EEO Counselor contact was untimely, that despite due diligence, she was prevented by circumstances beyond her control from contacting an EEO Counselor within the 45- day time limit. Complainant claims t hat the medical issue that prevented her from working from September 19, 2012, to March 4, 2013, was caused by her hostile work environment. According to Complainant, her frequent attempts to initiate contact with EEO Counselors both during and after the harassment demonstrated her due diligence. In response, the Agency asserts that Complainant is incorre ct in considering her contact with a Union Representative as constituting contact with an Agency official logically connected to the EEO process. The Agency argues that given that the most recent alleged discriminatory event occurred on September 11, 2012, Complainant had ample opportunity to contact an EEO Counselor as she did not go on me dical leave until eight days later. The Agency states that after Complainant went on medical leave, she contacted the San Francisco EEO Office on September 28, 2012, and left a message about filing an EEO complaint. The Agency notes that Complainant stated she initiated contact with the Manager of the EEO Office in Richmond, California on October 2, 2012. According to the Agency, on October 5, 2012, Complainant made an appointment to meet with the San Francisco EEO Office on October 9, 2012, for an intake interview, but she did not keep the appointment. The Agency stated that Complainant did not seek to reschedule the appointment until April 2, 2013. The Agency maintains that Complainant’s failure to keep the October 9 appointment reflected a lack of in tent to pursue EEO counseling. With regard to Complainant’s claim that she was unaware of the 45 -day limitation period for contacting an EEO Counselor, the Agency asserts that Complainant was constructively aware of the time limit. The Agency notes that it provided an affidavit which states that an EEO poster containing information regarding the applicable time limits for initiating the EEO counseling process was conspicuously posted at Complainant’s work facility during the relevant period. The Agency asserts that Complainant failed to act with due diligence in pursuit of her claim. According to the Agency, although Complainant asserts she had various medical conditions, there is insufficient evidence in the record to support the assertion that she was so incapacitated for a period of over six months that she was unable to contact an EEO Counselor. The Agency points out that Complainant made contact with EEO Offices on several occasions during the period she was on medical leave. The Agency notes that Complainant was not hospitalized during the period she was on medical leave and she did not submit medical documentation tha t indicates she has been in any treatment that would have r endered her so incapacitated to prevent her from fi ling an EEO claim. Finally, the Agency asserts that Complainant ’s filing of a grievance on September 14, 2012, regarding the reprimand issued on September 11, 2012, provides direct evidence of Complainant’s intent to raise this matter in the negotiated gr ievance forum. The Agency notes that the instant EEO complaint was not filed until June 4, 2013. Legal Analysis: the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of ev ents giving rise to this complaint, Complainant worked as a Claims Representative at an Agency work facility in San Francisco, California . On June 4, 2013, Complainant filed a formal complaint wherein she claimed that the Agency subjected her to discrimin atory harassment on the basis of her sex (female) when: 1. 1. 1. On December 24, 2011, Complainant’s Supervisor yelled at her in front of a claimant. 2. On June 12, 2012, the Supervisor yelled at Complainant, saying “I told you to take the interview I told you to take” and “I have asked you to put cases in EPAD and you didn’t.” 3. On June 20, 2012, the Supervisor called Complainant “stupid.” 4. On June 29, 2012, the Supervisor pointed his finger at Complainant’s chest and said “I will print a form and make you sign it.” 5. On July 10, 2012, the Supervisor forced Complainant to sign a performance evaluation Complainant knew she did not have to sign. 6. On July 11, 2012, Complainant did not receive an award for her work performance. 7. On July 13, 2012, the Supervisor stated that he could get rid of Complainant. 8. In July 2012, the Supervisor did not warn Complainant beforehand that a chair she sat in was broken, and Complainant almost fell on the floor. 9. On July 31, 2012, the Supervisor demanded to see Complainant and questioned her work. 10. On August 1, 7, 14, 30 and 31, 2012, the Supervisor questioned Complainant’s work. 11. In August 2012, the Supervisor stood close to Complainant while she was at the printer and stared at her without speaking and followed her when she moved away. 12. On September 6, 2012, Complainant witnessed the Supervisor hug and kiss the union representative. 13. On September 11, 2012, the Supervisor issued Complainant a reprimand. 14. On September 11, 2012, the Supervisor threw a piece of paper at Complainant’s lower private part. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor within 45 days of the most recent alleged discriminatory event. The Agency stated that the most recent event occurred on September 11, 2012, and that Complainant initially contacted an EEO Counselor on April 2, 2013. The Agency also dismissed claims (13 -14) pursuant to 29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant elected to pursue these claims through the Agency’s negotiated grievance procedure. According to the Agency, since the National Agreement permits allegations of discrimination, and Complainant raised the matt ers under the negotiated grievance procedure prior to filing the instant complaint, Complainant could not file an EEO complaint on the same matters. CONTENTIONS ON APPEAL On appeal, Complainant contends that she did initiate EEO contact in a timely manne r. Complainant states that she contacted the Union President on August 21, 2012, and filed a grievance regarding the harassment she was experiencing. Complainant states that on August 31, 2012, when her Supervisor came to her workspace, she made three requests to have her Union Representative present, but the Supervisor denied each request. Complainant claims that in September 2012, she called the Agen cy’s Civil Rights and Equal Opportunity Office and left a message about filing an EEO complaint against her Supervisor. Thereafter, Complainant states that on October 2, 2012, she contacted the EEO Manager. Complainant acknowledges that she did not follow through on her EEO complaint due to a medical condition that kept her out of work from September 19, 2012, to March 4, 2013. Complainant further argues that the 45 -day limitation period should be waived because she was not notified or otherwise aware of the 45- day time limit for initiating contact with an EEO Counselor. Additionally, Complainant maintains that if her EEO Counselor contact was untimely, that despite due diligence, she was prevented by circumstances beyond her control from contacting an EEO Counselor within the 45- day time limit. Complainant claims t hat the medical issue that prevented her from working from September 19, 2012, to March 4, 2013, was caused by her hostile work environment. According to Complainant, her frequent attempts to initiate contact with EEO Counselors both during and after the harassment demonstrated her due diligence. In response, the Agency asserts that Complainant is incorre ct in considering her contact with a Union Representative as constituting contact with an Agency official logically connected to the EEO process. The Agency argues that given that the most recent alleged discriminatory event occurred on September 11, 2012, Complainant had ample opportunity to contact an EEO Counselor as she did not go on me dical leave until eight days later. The Agency states that after Complainant went on medical leave, she contacted the San Francisco EEO Office on September 28, 2012, and left a message about filing an EEO complaint. The Agency notes that Complainant stated she initiated contact with the Manager of the EEO Office in Richmond, California on October 2, 2012. According to the Agency, on October 5, 2012, Complainant made an appointment to meet with the San Francisco EEO Office on October 9, 2012, for an intake interview, but she did not keep the appointment. The Agency stated that Complainant did not seek to reschedule the appointment until April 2, 2013. The Agency maintains that Complainant’s failure to keep the October 9 appointment reflected a lack of in tent to pursue EEO counseling. With regard to Complainant’s claim that she was unaware of the 45 -day limitation period for contacting an EEO Counselor, the Agency asserts that Complainant was constructively aware of the time limit. The Agency notes that it provided an affidavit which states that an EEO poster containing information regarding the applicable time limits for initiating the EEO counseling process was conspicuously posted at Complainant’s work facility during the relevant period. The Agency asserts that Complainant failed to act with due diligence in pursuit of her claim. According to the Agency, although Complainant asserts she had various medical conditions, there is insufficient evidence in the record to support the assertion that she was so incapacitated for a period of over six months that she was unable to contact an EEO Counselor. The Agency points out that Complainant made contact with EEO Offices on several occasions during the period she was on medical leave. The Agency notes that Complainant was not hospitalized during the period she was on medical leave and she did not submit medical documentation tha t indicates she has been in any treatment that would have r endered her so incapacitated to prevent her from fi ling an EEO claim. Finally, the Agency asserts that Complainant ’s filing of a grievance on September 14, 2012, regarding the reprimand issued on September 11, 2012, provides direct evidence of Complainant’s intent to raise this matter in the negotiated gr ievance forum. The Agency notes that the instant EEO complaint was not filed until June 4, 2013. ANALYSIS AND FINDINGS The record discloses that the most recent alleged discriminatory event occurred on September 11, 2012, but the Agency determined that Complainant did not initiate contact with an EEO Counselor until April 2, 2013, which is beyond the forty- five (45) day limitation period. On appeal, Complainant argues that she initiated EEO contact on several occasions prior to Apri l 2, 2013, within the 45-day limitation period. Complainant claims that she initiated contact with a Union Representative and that cons titutes contact with an Agency official logically connected to the EEO process. We find that a Union Representative is not an Agency official logically connected to the EEO process. See Sacco v. United States Postal Service , EEOC Appeal No. 0120101327 (May 26, 2011). With regard to Complainant’s subsequent alleged attempts to initiate the EEO process, we observe that Com plainant contacted EEO Offices several times but when she had an opportunity to pursue the EEO process, she chose not to do so. Complainant had an intake interview scheduled for October 9, 2012, with the San Francisco EEO Office bu t she did not keep the appointment , and did not reschedule the appointment until April 2, 2013. We find that Complainant did not exhibit intent to pursue the EEO complaint process until April 2, 2013, and thus her EEO contact was untimely. Complainant claims that she was unawar e of the 45- day limitation period. The record, however , indicates that Complainant had constructive notice of the time limit as the Agency provided an affidavit from the District Manager at Complainant’s work facility that states an EEO poster listing the 45-day limitation period was prominently displayed at the facility. With respect to Complainant’s claim that despite her due diligence, she was prevented from pursuing the EEO process due to her medical conditions, we observe that Complainant informed the EEO Counselor in April 2013, that she had nightmares for the past six months, was attending therapy sessions and that her conditions were acute stress disorder, panic attacks and anxiety. However, we discern no medical documentation in support of these assertions. Therefore, Complainant failed to present sufficient evidence to establish that she was so incapacitated to prevent her from pursuing the EEO process. We find that Complainant has presented no persuasive arguments or evidence warranting an ext ension of the time limit for initiating EEO Counselor contact. 1 In light of our finding that Complainant failed to initiate EEO Counselor contact in a timely manner, we need not address the Agency’s alternative grounds for dismissal of claims (13- 14).	, Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120133113 Agency No. SF -13-0476- SSA DECISION Complainant filed a timely appeal with this Commission from the Agency's fin al decision dated June 27, 2013 dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civ il Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq . Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of ev ents giving rise to this complaint, Complainant worked as a Claims Representative at an Agency work facility in San Francisco, California . On June 4, 2013, Complainant filed a formal complaint wherein she claimed that the Agency subjected her to discrimin atory harassment on the basis of her sex (female) when: 1. 1. 1. On December 24, 2011, Complainant’s Supervisor yelled at her in front of a claimant. 2. On June 12, 2012, the Supervisor yelled at Complainant, saying “I told you to take the interview I told you to take” and “I have asked you to put cases in EPAD and you didn’t.” 3. On June 20, 2012, the Supervisor called Complainant “stupid.” 4. On June 29, 2012, the Supervisor pointed his finger at Complainant’s chest and said “I will print a form and make you sign it.” 5. On July 10, 2012, the Supervisor forced Complainant to sign a performance evaluation Complainant knew she did not have to sign. 6. On July 11, 2012, Complainant did not receive an award for her work performance. 7. On July 13, 2012, the Supervisor stated that he could get rid of Complainant. 8. In July 2012, the Supervisor did not warn Complainant beforehand that a chair she sat in was broken, and Complainant almost fell on the floor. 9. On July 31, 2012, the Supervisor demanded to see Complainant and questioned her work. 10. On August 1, 7, 14, 30 and 31, 2012, the Supervisor questioned Complainant’s work. 11. In August 2012, the Supervisor stood close to Complainant while she was at the printer and stared at her without speaking and followed her when she moved away. 12. On September 6, 2012, Complainant witnessed the Supervisor hug and kiss the union representative. 13. On September 11, 2012, the Supervisor issued Complainant a reprimand. 14. On September 11, 2012, the Supervisor threw a piece of paper at Complainant’s lower private part. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor within 45 days of the most recent alleged discriminatory event. The Agency stated that the most recent event occurred on September 11, 2012, and that Complainant initially contacted an EEO Counselor on April 2, 2013. The Agency also dismissed claims (13 -14) pursuant to 29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant elected to pursue these claims through the Agency’s negotiated grievance procedure. According to the Agency, since the National Agreement permits allegations of discrimination, and Complainant raised the matt ers under the negotiated grievance procedure prior to filing the instant complaint, Complainant could not file an EEO complaint on the same matters. CONTENTIONS ON APPEAL On appeal, Complainant contends that she did initiate EEO contact in a timely manne r. Complainant states that she contacted the Union President on August 21, 2012, and filed a grievance regarding the harassment she was experiencing. Complainant states that on August 31, 2012, when her Supervisor came to her workspace, she made three requests to have her Union Representative present, but the Supervisor denied each request. Complainant claims that in September 2012, she called the Agen cy’s Civil Rights and Equal Opportunity Office and left a message about filing an EEO complaint against her Supervisor. Thereafter, Complainant states that on October 2, 2012, she contacted the EEO Manager. Complainant acknowledges that she did not follow through on her EEO complaint due to a medical condition that kept her out of work from September 19, 2012, to March 4, 2013. Complainant further argues that the 45 -day limitation period should be waived because she was not notified or otherwise aware of the 45- day time limit for initiating contact with an EEO Counselor. Additionally, Complainant maintains that if her EEO Counselor contact was untimely, that despite due diligence, she was prevented by circumstances beyond her control from contacting an EEO Counselor within the 45- day time limit. Complainant claims t hat the medical issue that prevented her from working from September 19, 2012, to March 4, 2013, was caused by her hostile work environment. According to Complainant, her frequent attempts to initiate contact with EEO Counselors both during and after the harassment demonstrated her due diligence. In response, the Agency asserts that Complainant is incorre ct in considering her contact with a Union Representative as constituting contact with an Agency official logically connected to the EEO process. The Agency argues that given that the most recent alleged discriminatory event occurred on September 11, 2012, Complainant had ample opportunity to contact an EEO Counselor as she did not go on me dical leave until eight days later. The Agency states that after Complainant went on medical leave, she contacted the San Francisco EEO Office on September 28, 2012, and left a message about filing an EEO complaint. The Agency notes that Complainant stated she initiated contact with the Manager of the EEO Office in Richmond, California on October 2, 2012. According to the Agency, on October 5, 2012, Complainant made an appointment to meet with the San Francisco EEO Office on October 9, 2012, for an intake interview, but she did not keep the appointment. The Agency stated that Complainant did not seek to reschedule the appointment until April 2, 2013. The Agency maintains that Complainant’s failure to keep the October 9 appointment reflected a lack of in tent to pursue EEO counseling. With regard to Complainant’s claim that she was unaware of the 45 -day limitation period for contacting an EEO Counselor, the Agency asserts that Complainant was constructively aware of the time limit. The Agency notes that it provided an affidavit which states that an EEO poster containing information regarding the applicable time limits for initiating the EEO counseling process was conspicuously posted at Complainant’s work facility during the relevant period. The Agency asserts that Complainant failed to act with due diligence in pursuit of her claim. According to the Agency, although Complainant asserts she had various medical conditions, there is insufficient evidence in the record to support the assertion that she was so incapacitated for a period of over six months that she was unable to contact an EEO Counselor. The Agency points out that Complainant made contact with EEO Offices on several occasions during the period she was on medical leave. The Agency notes that Complainant was not hospitalized during the period she was on medical leave and she did not submit medical documentation tha t indicates she has been in any treatment that would have r endered her so incapacitated to prevent her from fi ling an EEO claim. Finally, the Agency asserts that Complainant ’s filing of a grievance on September 14, 2012, regarding the reprimand issued on September 11, 2012, provides direct evidence of Complainant’s intent to raise this matter in the negotiated gr ievance forum. The Agency notes that the instant EEO complaint was not filed until June 4, 2013. ANALYSIS AND FINDINGS The record discloses that the most recent alleged discriminatory event occurred on September 11, 2012, but the Agency determined that Complainant did not initiate contact with an EEO Counselor until April 2, 2013, which is beyond the forty- five (45) day limitation period. On appeal, Complainant argues that she initiated EEO contact on several occasions prior to Apri l 2, 2013, within the 45-day limitation period. Complainant claims that she initiated contact with a Union Representative and that cons titutes contact with an Agency official logically connected to the EEO process. We find that a Union Representative is not an Agency official logically connected to the EEO process. See Sacco v. United States Postal Service , EEOC Appeal No. 0120101327 (May 26, 2011). With regard to Complainant’s subsequent alleged attempts to initiate the EEO process, we observe that Com plainant contacted EEO Offices several times but when she had an opportunity to pursue the EEO process, she chose not to do so. Complainant had an intake interview scheduled for October 9, 2012, with the San Francisco EEO Office bu t she did not keep the appointment , and did not reschedule the appointment until April 2, 2013. We find that Complainant did not exhibit intent to pursue the EEO complaint process until April 2, 2013, and thus her EEO contact was untimely. Complainant claims that she was unawar e of the 45- day limitation period. The record, however , indicates that Complainant had constructive notice of the time limit as the Agency provided an affidavit from the District Manager at Complainant’s work facility that states an EEO poster listing the 45-day limitation period was prominently displayed at the facility. With respect to Complainant’s claim that despite her due diligence, she was prevented from pursuing the EEO process due to her medical conditions, we observe that Complainant informed the EEO Counselor in April 2013, that she had nightmares for the past six months, was attending therapy sessions and that her conditions were acute stress disorder, panic attacks and anxiety. However, we discern no medical documentation in support of these assertions. Therefore, Complainant failed to present sufficient evidence to establish that she was so incapacitated to prevent her from pursuing the EEO process. We find that Complainant has presented no persuasive arguments or evidence warranting an ext ension of the time limit for initiating EEO Counselor contact. 1 In light of our finding that Complainant failed to initiate EEO Counselor contact in a timely manner, we need not address the Agency’s alternative grounds for dismissal of claims (13- 14). CONCLUSION Accordingly, the Agency's final decision dismissing Complai nant's complaint is AFFIRMED . 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 reques t 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 r econsideration. 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 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 f ees, 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 DateMay 13, 2015	[ "Sacco v. United States Postal Service , EEOC Appeal No. 0120101327 (May 26, 2011)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.09825097769498825, 0.07930421084165573, -0.029425296932458878, 0.06901172548532486, 0.02155773900449276, 0.03987366333603859, 0.0579552948474884, -0.0025116819888353348, 0.02976836822926998, 0.011460683308541775, 0.03536629676818848, 0.007608404383063316, -0.007073468528687954, 0.001386...
18	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122759.txt	0120122759.txt	TXT	text/plain	12,197		June 2, 2012	Appeal Number: 0120122759 Background: At the time of events giving rise to this complaint, Complainant worked as a Manager at the Agency's Performance, Accountability and Systems Division (PASD), Human Resources Department in Washington, DC. On November 10, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (White/Caucasian), sex (female), age (56 & 57), and reprisal for prior protected EEO activity when: 1. The Agency did not properly process her informal equal employment opportunity (EEO) she initiated on July 23, 2010; and 2. The Agency did not properly process her claims about the improper processing. The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed EEO complaint. 29 C.F.R. § 1614.107(a)(8). It also found that Complainant withdrew her above informal complaint on October 21, 2010. Complainant rotated as acting PASD Manager from approximately February to June 2010. Thereafter, she applied for the position and was offered the job. When the HRD Director offered the job, she advised Complainant that she would have to continue performing her prior Administrative Officer duties as well as the PASD Manager job. Complainant accepted the job in September 2010. According to the counselor's report, Complainant's Administrative Office duties were reassigned away from her in May 2011. On July 23, 2010, and again in September and October 2010, Complainant contacted the EEO office complaining that it was a prohibited personnel practice for her to be required to perform the job of two positions (EEO Case 1, Case PC-029-2010). On October 21, 2010, Complainant signed a letter withdrawing EEO Case 1. By February 2011, or perhaps as early as November 9, 2010, Complainant again initiated EEO counseling about being required to perform the job of two positions, and on March 24, 2011, completed an EEO intake form concerning this. (EEO Case 2) See Agency Statement in Opposition to Appeal, Encl. 2 at page 006, and Encl. 3 at page 009; Complainant's Notice of Appeal/Petition Statement, Attachment 9, documents labeled #7 and the one submitted to the EEO office on March 7, 2011.2 After Complainant demanded an immediate FAD, by email on May 31, 2011, the Agency issued her a notice of right to file a discrimination complaint. The record does not contain this notice. Complainant emailed the Agency back on June 2, 2011, that she did not know what case the notice referred too, and complained the Agency was trying to set a deadline for her when it did not observe one for months. She did not file a formal complaint in connection with the May 31, 2011, notice. Complainant's email was referred to the Agency's EEO Director. She wrote Complainant on August 29, 2011, detailing how EEO Case 2 was processed and concluding it was properly handled. On August 5, 2011, Complainant initiated EEO counseling again (instant case, EEO Case 3). Thereafter, she filed her EEO complaint alleging that the Agency EEO office deliberately quashed her EEO case and that its EEO Director said that the majority of EEO cases are "just drama" with no merit. She complains that the EEO office did not look into or investigate EEO Case 1. She suggests that while the Agency processed her EEO matters as three cases, they are really only one case. The formal complaint in EEO case 3 was filed on November 10, 2011. On February 13, 2012, Complainant signed an agreement to extend the 180 day investigative process by 90 days. On May 9, 2012, prior to the expiration of this extension, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ). According to the Commission's case tracking system, on December 5, 2013, the EEOC Hearings Unit dismissed the case under 29 C.F.R. § 1614.107. In her June 2012 appeal brief, Complainant argues that the Agency dismissed EEO Case 3 after she requested a hearing (which violates EEOC Regulation 29 C.F.R. § 1614.107 that only permits Agency dismissals prior to a request for a hearing). Complainant contends that after she submitted her withdrawal letter on EEO Case 1, she asked the EEO counselor about it, and he said "Don't worry about it, we know it is partial" and later mislead her by advising "this" would continue her EEO case without "filing it all over again." Complainant compares her withdrawal to a prior EEO case where the Agency issued a decision dismissing part of her EEO complaint, and allowing part of it to continue. She argues that the Agency improperly processed her EEO case(s). In opposition to Complainant's appeal, the Agency supports its FAD. Legal Analysis: the Commission's case tracking system, on December 5, 2013, the EEOC Hearings Unit dismissed the case under 29 C.F.R. § 1614.107. In her June 2012 appeal brief, Complainant argues that the Agency dismissed EEO Case 3 after she requested a hearing (which violates EEOC Regulation 29 C.F.R. § 1614.107 that only permits Agency dismissals prior to a request for a hearing). Complainant contends that after she submitted her withdrawal letter on EEO Case 1, she asked the EEO counselor about it, and he said "Don't worry about it, we know it is partial" and later mislead her by advising "this" would continue her EEO case without "filing it all over again." Complainant compares her withdrawal to a prior EEO case where the Agency issued a decision dismissing part of her EEO complaint, and allowing part of it to continue. She argues that the Agency improperly processed her EEO case(s). In opposition to Complainant's appeal, the Agency supports its FAD. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107 only permits an Agency to procedurally dismiss a complaint prior to a request for a hearing. While the Agency dismissed Complainant's complaint after her hearing request, the EEOC Hearings Unit has already separately dismissed the same complaint on procedural grounds.3 For this reason, we find that Complainant's appeal of the dismissal is ripe for adjudication. After Complainant withdrew her informal complaint in EEO Case 1, she attempted to revive it in EEO Cases 2 and 3. When Complainant initially attempted to revive her informal complaint, rather than treating this as EEO case 2, it would have made more sense for the Agency to process Complainant's contention as a claim that EEO case 1 was improperly closed, and to then issue a FAD on EEO case 1 regarding this. This would have avoided the lengthy processing that has occurred in this case. We now turn to the substance of the withdrawal, Complainant's central concern. Her October 21, 2010, withdrawal letter was unequivocal, reading I "hereby withdraw my informal complaint of discrimination." There was no language therein indicating a partial withdrawal. Complainant does not state what anyone said to her prior to her signing her withdrawal letter that led her to believe it was partial. The Commission has found that where a complainant "knowingly and voluntarily withdrew his complaint .... the Commission considers the matter to have been finally abandoned." See Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994). The dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (October 17, 2005). These cases have been applied to the withdrawal of an informal complaint. Bowers v. Department of Veterans Affairs, EEOC Appeal No. 0120063919 (March 7, 2007). Based on the record, we find that Complainant's withdrawal of her informal complaint in EEO Case 1 was knowing and voluntary, and hence she is barred from reviving the same claim. Further, we find that the Agency properly dismissed Complainant's claims about the EEO office's processing of her complaints pursuant to 29 C.F.R. § 1614.107(a)(8). The FAD is AFFIRMED.	Complainant, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation,1 Agency. Appeal No. 0120122759 Agency No. PBGC 12-002-F DECISION On June 2, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 11, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager at the Agency's Performance, Accountability and Systems Division (PASD), Human Resources Department in Washington, DC. On November 10, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (White/Caucasian), sex (female), age (56 & 57), and reprisal for prior protected EEO activity when: 1. The Agency did not properly process her informal equal employment opportunity (EEO) she initiated on July 23, 2010; and 2. The Agency did not properly process her claims about the improper processing. The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed EEO complaint. 29 C.F.R. § 1614.107(a)(8). It also found that Complainant withdrew her above informal complaint on October 21, 2010. Complainant rotated as acting PASD Manager from approximately February to June 2010. Thereafter, she applied for the position and was offered the job. When the HRD Director offered the job, she advised Complainant that she would have to continue performing her prior Administrative Officer duties as well as the PASD Manager job. Complainant accepted the job in September 2010. According to the counselor's report, Complainant's Administrative Office duties were reassigned away from her in May 2011. On July 23, 2010, and again in September and October 2010, Complainant contacted the EEO office complaining that it was a prohibited personnel practice for her to be required to perform the job of two positions (EEO Case 1, Case PC-029-2010). On October 21, 2010, Complainant signed a letter withdrawing EEO Case 1. By February 2011, or perhaps as early as November 9, 2010, Complainant again initiated EEO counseling about being required to perform the job of two positions, and on March 24, 2011, completed an EEO intake form concerning this. (EEO Case 2) See Agency Statement in Opposition to Appeal, Encl. 2 at page 006, and Encl. 3 at page 009; Complainant's Notice of Appeal/Petition Statement, Attachment 9, documents labeled #7 and the one submitted to the EEO office on March 7, 2011.2 After Complainant demanded an immediate FAD, by email on May 31, 2011, the Agency issued her a notice of right to file a discrimination complaint. The record does not contain this notice. Complainant emailed the Agency back on June 2, 2011, that she did not know what case the notice referred too, and complained the Agency was trying to set a deadline for her when it did not observe one for months. She did not file a formal complaint in connection with the May 31, 2011, notice. Complainant's email was referred to the Agency's EEO Director. She wrote Complainant on August 29, 2011, detailing how EEO Case 2 was processed and concluding it was properly handled. On August 5, 2011, Complainant initiated EEO counseling again (instant case, EEO Case 3). Thereafter, she filed her EEO complaint alleging that the Agency EEO office deliberately quashed her EEO case and that its EEO Director said that the majority of EEO cases are "just drama" with no merit. She complains that the EEO office did not look into or investigate EEO Case 1. She suggests that while the Agency processed her EEO matters as three cases, they are really only one case. The formal complaint in EEO case 3 was filed on November 10, 2011. On February 13, 2012, Complainant signed an agreement to extend the 180 day investigative process by 90 days. On May 9, 2012, prior to the expiration of this extension, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ). According to the Commission's case tracking system, on December 5, 2013, the EEOC Hearings Unit dismissed the case under 29 C.F.R. § 1614.107. In her June 2012 appeal brief, Complainant argues that the Agency dismissed EEO Case 3 after she requested a hearing (which violates EEOC Regulation 29 C.F.R. § 1614.107 that only permits Agency dismissals prior to a request for a hearing). Complainant contends that after she submitted her withdrawal letter on EEO Case 1, she asked the EEO counselor about it, and he said "Don't worry about it, we know it is partial" and later mislead her by advising "this" would continue her EEO case without "filing it all over again." Complainant compares her withdrawal to a prior EEO case where the Agency issued a decision dismissing part of her EEO complaint, and allowing part of it to continue. She argues that the Agency improperly processed her EEO case(s). In opposition to Complainant's appeal, the Agency supports its FAD. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107 only permits an Agency to procedurally dismiss a complaint prior to a request for a hearing. While the Agency dismissed Complainant's complaint after her hearing request, the EEOC Hearings Unit has already separately dismissed the same complaint on procedural grounds.3 For this reason, we find that Complainant's appeal of the dismissal is ripe for adjudication. After Complainant withdrew her informal complaint in EEO Case 1, she attempted to revive it in EEO Cases 2 and 3. When Complainant initially attempted to revive her informal complaint, rather than treating this as EEO case 2, it would have made more sense for the Agency to process Complainant's contention as a claim that EEO case 1 was improperly closed, and to then issue a FAD on EEO case 1 regarding this. This would have avoided the lengthy processing that has occurred in this case. We now turn to the substance of the withdrawal, Complainant's central concern. Her October 21, 2010, withdrawal letter was unequivocal, reading I "hereby withdraw my informal complaint of discrimination." There was no language therein indicating a partial withdrawal. Complainant does not state what anyone said to her prior to her signing her withdrawal letter that led her to believe it was partial. The Commission has found that where a complainant "knowingly and voluntarily withdrew his complaint .... the Commission considers the matter to have been finally abandoned." See Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994). The dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (October 17, 2005). These cases have been applied to the withdrawal of an informal complaint. Bowers v. Department of Veterans Affairs, EEOC Appeal No. 0120063919 (March 7, 2007). Based on the record, we find that Complainant's withdrawal of her informal complaint in EEO Case 1 was knowing and voluntary, and hence she is barred from reviving the same claim. Further, we find that the Agency properly dismissed Complainant's claims about the EEO office's processing of her complaints pursuant to 29 C.F.R. § 1614.107(a)(8). The FAD is AFFIRMED. 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 (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 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 March 27, 2014 __________________ Date 1 The Agency contracted with the Department of Veterans Affairs to process Complainant's complaint. Accordingly, it issued the FAD on behalf of the Agency. For this reason we are sending a copy of this decision to component of the Department of Veterans Affairs that is designated to receive EEOC decisions. 2 The complaint file contains a copy of Complainant's Appeal/Petition Statement with attachments. The referenced documents are at pages "110 of 123" and "115 of 123." 3 A copy of the Hearing Unit's dismissal or an Agency decision implementing it is not in the record. ------------------------------------------------------------ ------------------------------------------------------------	[ "Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994)", "Bowers v. Department of Veterans Affairs, EEOC Appeal No. 0120063919 (March 7, 2007)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", ...	[ -0.08046112954616547, 0.07598644495010376, -0.047402918338775635, 0.035525500774383545, 0.016837259754538536, 0.09120342880487442, 0.039209749549627304, -0.0472547709941864, -0.03279272839426994, 0.03600817546248436, 0.05480208247900009, -0.04546915367245674, -0.025595366954803467, -0.0282...
19	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a43669.txt	01a43669.txt	TXT	text/plain	10,895	Lula M. Stago v. Department of the Interior 01A43669 September 21, 2005 . Lula M. Stago, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.	September 21, 2005	Appeal Number: 01A43669 Case Facts: Legal Analysis: Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. In her formal EEO complaint, filed on April 7, 2003, complainant claimed that she was subjected to discrimination and harassment on the bases of sex, age, and in reprisal for prior EEO activity when: From 1986 to June 1991, agency management subjected complainant to harassment; slander; defamation of character; physical assault; and other retaliatory actions; From July 1988 to January 1989, complainant received unfair performance appraisals; On January 17, 1989, February 3, 1989, October 15, 1990, and in January 1991, the agency issued complainant Letters of Warning; On February 5, 1990 and March 8, 1990, the agency issued complainant Letters of Reprimand; The agency failed to renew complainant's employment contract for the 1991-1992 school year; On August 20, 1993, the agency failed to select complainant for the position of principal at the Seba Dalkai school; In 1998, complainant was not selected for a position by the WBES Board due to derogatory comments; and In 2001 and 2002, the agency failed to select complainant for superintendent positions at the Eastern Navajo Agency, the Fort Defiance Agency, and the Chinle Agency. The record discloses that complainant initiated EEO Counselor contact in November 1989; August 1996; and January 7, 2003. Complainant also requested that the instant complaint be amended to include claims (7) and (8), by correspondence dated May 22, 2003. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Moreover, the Commission has held that a complainant must act with due diligence in the pursuit of a claim or the doctrine of laches may be applied. See Lopez v. Department of State, EEOC Appeal No. 01A31286 (April 21, 2003), citing O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Regarding the November 1989 EEO Counselor contact, complainant argues that the EEO Counselor failed to provide her with the necessary information to pursue a formal complaint, presumably regarding those incidents described in claims (1) - (3), which occurred during the relevant time-frame, such that she was unable to file an EEO complaint. Complainant further claims that the EEO Counselor attempted to convince her to drop her EEO complaint. Complainant's statements are uncorroborated. However, even assuming that they are accurate, the record is devoid of any indication that complainant reasonably believed that she was barred from further pursuit of her EEO claims as a result of the EEO Counselor's actions. Moreover, the record lacks evidence to show that complainant made any further inquiries, or otherwise attempted to obtain information regarding her EEO rights, or the procedure for pursuing them. In this regard, complainant did not next contact an EEO Counselor until August 1996, approximately seven years later. Under these circumstances, we find that complainant failed to act with reasonable diligence in pursuing her EEO claims. Therefore, we conclude that the agency properly dismissed claims (1) - (3) on the grounds of untimely EEO Counselor contact. Regarding complainant's August 1996 EEO Counselor contact, which apparently concerned incidents raised in claims (1) - (6), complainant asserts that she filed a complaint which the agency failed to process. However, based on the incident dates provided by complainant, we find that none of the incidents in these claims fall within the 45-day time limit with reference to her August 1996 contact. Likewise, we find that none of the incidents in claims (1) - (6) are timely as to complainant's January 7, 2003 EEO Counselor contact. Moreover, regarding claims 7 and 8, we note that complainant raised these claims through a May 22, 2003 amendment to her complaint. However, using the date of the amendment as the initial contact date, it is clearly beyond the 45-day time limit regarding the non-selections in 2001 and 2002 raised in claims (7) and (8). On appeal, complainant contends that it was only sometime after August 1996 that she became aware of the time limit for contacting an EEO Counselor.<1> However, as to the August 1996 EEO Counselor contact (as well as the November 1989 EEO Counselor contact), we find that this purported lack of notice is not sufficient to waive the time limit in light of complainant's extreme lack of diligence in pursuing her EEO claims.<2> Specifically, regarding the August 1996 EEO Counselor contact, the record reflects that although complainant believed that she filed a complaint when she provided the EEO Counselor with a written statement, she only made two inquiries over the course of many years to ascertain that status of the processing, making no meaningful or sustained effort to do so. On appeal, complainant asserts that the lack of an agency response to these inquiries lead her to reasonably believe that her complaint was being properly processed. However, we are not persuaded that this belief is reasonable; to the contrary, we find that the lack of response should have instead led complainant to the opposite	Lula M. Stago v. Department of the Interior 01A43669 September 21, 2005 . Lula M. Stago, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency. Appeal No. 01A43669 Agency No. BIA-03-027 DECISION Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. In her formal EEO complaint, filed on April 7, 2003, complainant claimed that she was subjected to discrimination and harassment on the bases of sex, age, and in reprisal for prior EEO activity when: From 1986 to June 1991, agency management subjected complainant to harassment; slander; defamation of character; physical assault; and other retaliatory actions; From July 1988 to January 1989, complainant received unfair performance appraisals; On January 17, 1989, February 3, 1989, October 15, 1990, and in January 1991, the agency issued complainant Letters of Warning; On February 5, 1990 and March 8, 1990, the agency issued complainant Letters of Reprimand; The agency failed to renew complainant's employment contract for the 1991-1992 school year; On August 20, 1993, the agency failed to select complainant for the position of principal at the Seba Dalkai school; In 1998, complainant was not selected for a position by the WBES Board due to derogatory comments; and In 2001 and 2002, the agency failed to select complainant for superintendent positions at the Eastern Navajo Agency, the Fort Defiance Agency, and the Chinle Agency. The record discloses that complainant initiated EEO Counselor contact in November 1989; August 1996; and January 7, 2003. Complainant also requested that the instant complaint be amended to include claims (7) and (8), by correspondence dated May 22, 2003. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Moreover, the Commission has held that a complainant must act with due diligence in the pursuit of a claim or the doctrine of laches may be applied. See Lopez v. Department of State, EEOC Appeal No. 01A31286 (April 21, 2003), citing O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Regarding the November 1989 EEO Counselor contact, complainant argues that the EEO Counselor failed to provide her with the necessary information to pursue a formal complaint, presumably regarding those incidents described in claims (1) - (3), which occurred during the relevant time-frame, such that she was unable to file an EEO complaint. Complainant further claims that the EEO Counselor attempted to convince her to drop her EEO complaint. Complainant's statements are uncorroborated. However, even assuming that they are accurate, the record is devoid of any indication that complainant reasonably believed that she was barred from further pursuit of her EEO claims as a result of the EEO Counselor's actions. Moreover, the record lacks evidence to show that complainant made any further inquiries, or otherwise attempted to obtain information regarding her EEO rights, or the procedure for pursuing them. In this regard, complainant did not next contact an EEO Counselor until August 1996, approximately seven years later. Under these circumstances, we find that complainant failed to act with reasonable diligence in pursuing her EEO claims. Therefore, we conclude that the agency properly dismissed claims (1) - (3) on the grounds of untimely EEO Counselor contact. Regarding complainant's August 1996 EEO Counselor contact, which apparently concerned incidents raised in claims (1) - (6), complainant asserts that she filed a complaint which the agency failed to process. However, based on the incident dates provided by complainant, we find that none of the incidents in these claims fall within the 45-day time limit with reference to her August 1996 contact. Likewise, we find that none of the incidents in claims (1) - (6) are timely as to complainant's January 7, 2003 EEO Counselor contact. Moreover, regarding claims 7 and 8, we note that complainant raised these claims through a May 22, 2003 amendment to her complaint. However, using the date of the amendment as the initial contact date, it is clearly beyond the 45-day time limit regarding the non-selections in 2001 and 2002 raised in claims (7) and (8). On appeal, complainant contends that it was only sometime after August 1996 that she became aware of the time limit for contacting an EEO Counselor.<1> However, as to the August 1996 EEO Counselor contact (as well as the November 1989 EEO Counselor contact), we find that this purported lack of notice is not sufficient to waive the time limit in light of complainant's extreme lack of diligence in pursuing her EEO claims.<2> Specifically, regarding the August 1996 EEO Counselor contact, the record reflects that although complainant believed that she filed a complaint when she provided the EEO Counselor with a written statement, she only made two inquiries over the course of many years to ascertain that status of the processing, making no meaningful or sustained effort to do so. On appeal, complainant asserts that the lack of an agency response to these inquiries lead her to reasonably believe that her complaint was being properly processed. However, we are not persuaded that this belief is reasonable; to the contrary, we find that the lack of response should have instead led complainant to the opposite conclusion. In fact, we find complainant's failure to meaningfully ascertain the status of her complaint over the course of years is tantamount to abandoning her claims. Therefore, for the reasons set forth above, we find that the agency properly dismissed each of these claims on the grounds of untimely EEO Counselor contact. Additionally, although we find that complainant is raising a claim of harassment, there are no timely incidents offered to support this claim. Furthermore, although we have carefully considered complainant's arguments that the agency's purportedly inept processing of this complaint warrants an across-the-board waiver of the time limit, we find that complainant's failure to exercise reasonable diligence in pursuing her EEO rights precludes equitable tolling under 29 C.F.R. § 1614.604(c) in this case. Accordingly, for the reasons set forth above, we conclude that the agency properly dismissed the instant complaint on the grounds of untimely EEO Counselor contact, and we AFFIRM that determination. Because we affirm the agency's dismissal for the reason addressed herein, we find it unnecessary to address alternative dismissal grounds. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 21, 2005 __________________ Date 1We find that it does not appear that complainant is contending a lack of notice of the time limit regarding her January 2003 EEO counselor contact. 2For the same reasons set forth above in our discussion of complainant's November 1989 EEO Counselor contact, we find that complainant failed to exercise reasonable diligence in pursuing her EEO claim, over the course of many years, which precludes a finding that the time limit should be waived due to a lack of notice.	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.604(c)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "42 U.S.C. § 2000e", ...	[ -0.005815343465656042, 0.09764423966407776, -0.01297961175441742, 0.06683268398046494, -0.004010280128568411, 0.01673087850213051, -0.011885452084243298, 0.05988294258713722, -0.011440791189670563, -0.00814075581729412, 0.06270486861467361, -0.046497195959091187, -0.013108455576002598, -0....
20	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a34080.txt	01a34080.txt	TXT	text/plain	14,956	Sandra Prieto v. Department of Justice 01A34080 June 23 ,2004 . Sandra Prieto, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency.	May 28, 2003	Appeal Number: 01A34080 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated May 28, 2003, 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. On January 3, 2003, complainant contacted the EEO office claiming that she was subjected to discriminatory harassment based on race. According to the EEO counseling records, complainant claimed that because she is the only Hispanic in her department, her supervisor treated her less favorably than other employees. The alleged disparity in treatment allegedly involved annual leave and work schedule issues. Complainant further claimed that her supervisor verbally harassed her. Complainant cited an incident where her supervisor hounded her to the point that she covered her ears and began shaking. Complainant also enumerated five additional incidents of harassment occurring from December 2, 2002 through December 16, 2002. Informal efforts to resolve complainant's concerns were unsuccessful, and after EEO Counseling was completed, the complainant signed a Notice of Right to File Individual Complaint (Notice) on February 3, 2003. The Notice indicated that complainant had to file a complaint within fifteen calendar days of its receipt. The record shows that complainant did not file a formal complaint regarding the matters for which she initiated EEO counseling in January 2003, as described above, within the limitation period. However, complainant thereafter received a letter on February 27, 2003, regarding an adverse action issued on February 18, 2003. Therein, the agency suspended complainant for seven calendar days effective March 17 to March 23, 2003, in lieu of a proposed demotion that had been issued on December 20, 2002. The agency letter informed complainant that she could pursue the EEO complaint process regarding the suspension. The record reflects that after receiving the letter of suspension, complainant contacted the agency's EEO office by letter dated March 29, 2003. In her letter, complainant indicated that she elected to file a formal complaint regarding her suspension through an EEO Counselor. Complainant stated that the seven-day suspension was an extremely harsh punishment. As a remedy, complainant requested back pay for the suspended days, and that the suspension letter be expunged from her personnel record. On April 4, 2003, complainant filed a formal complaint that is the subject of the instant appeal. Therein, complainant claimed that she was the victim of unlawful employment discrimination on the bases of race and national origin when on February 18, 2003, she was issued a seven-day suspension effective March 17 through March 23, 2003. By letter dated April 28, 2003, the agency determined that complainant had not undergone EEO counseling regarding the matter raised in her formal complaint. The agency requested that complainant provide an explanation why she did not address the issue of the February 18, 2003 letter of suspension during the EEO counseling that she initiated on January 3, 2003, and that was completed on February 3, 2003. The agency also requested that complainant provide an explanation why she waited more than fifteen days to file her complaint, from the date that she received the Notice. The agency noted that complainant received the Notice of Final Interview (Notice) on February 3, 2003, but that complainant filed her complaint on April 4, 2003. In a reply dated May 13, 2003 (amended by letter dated May 16, 2003), complainant stated that when she received the Notice issued on February 3, 2003, she elected to abandon the harassment claims against her supervisor because her working conditions were improving. However, complainant stated after receiving the suspension letter on February 27, 2003, she elected to pursued the EEO process to appeal the agency's action. Complainant contended that the suspension was a new issue independent from the issues of harassment she abandoned. Complainant stated that because her facility had only one EEO Counselor she attempted on various occasions to contact an EEO Counselor at another facility to start the EEO process, with no results. Complainant asserted that on March 7, 2003, she finally contacted a named EEO Counselor at her facility and indicated her intention to file an EEO complaint on the suspension issue. Complainant stated that the EEO Counselor provided her with a complaint form and informed her that she would be contacted after she, the named EEO Counselor, spoke with management officials. Complainant stated that on March 28, 2003, the EEO Counselor informed her by telephone that after talking to management the suspension issue could not be resolved informally. Complainant stated that she proceeded to file the EEO complaint form provided by the EEO Counselor. On May 28, 2003, the agency issued a final decision that is the subject of the instant appeal, dismissing the complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The agency determined that complainant's claim concerning her suspension issued on February 18, 2003, was not raised with an EEO Counselor during the EEO counseling process that initiated on January 3, 2003. The agency also dismissed the complaint on the grounds that complainant failed to timely file her complaint. The agency stated that complainant received the notice on February 3, 2003, but that she untimely filed her complaint on April 4, 2003. EEO Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor. In its May 28, 2003 final decision, the agency stated that official records fail to reflect that complainant underwent EEO counseling on the matter of the suspension. The record shows, however, that complainant provided a detailed explanation concerning her efforts to initiate EEO counseling on this matter. Specifically, in response to the suspension letter, complainant sent a letter to the EEO office, dated March 29, 2003, where she stated her election to pursue her suspension claim through the EEO process. Specifically, complainant stated that: I have chosen to file a formal complaint through an EEO Counselor. Moreover, complainant also indicated to the EEO office in a letter dated May 13, 2003, that she met with a named EEO Counselor on March 7, 2003, and brought to his attention the suspension issue; that the EEO Counselor consulted various agency officials; and that thereafter the EEO Counselor contacted complainant later in March 2003, and stated that he was unable to resolve the matter informally. The Commission notes that in its final decision, issued subsequent to complainant's letter of May 13, 2003, the agency does not specifically address complainant's claim that a named agency EEO Counselor had undertaken the action as described by complainant. The Commission determines that complainant raised a claim regarding a suspension with an EEO Counselor in March 2003, and the agency improperly dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(2). Legal Analysis: The Commission notes that in its final decision, issued subsequent to complainant's letter of May 13, 2003, the agency does not specifically address complainant's claim that a named agency EEO Counselor had undertaken the action as described by complainant. The Commission determines that complainant raised a claim regarding a suspension with an EEO Counselor in March 2003, and the agency improperly dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(2). EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. As determined above, complainant's suspension claim is a separate incident which has no nexus to the various harassment incidents that complainant raised with an EEO Counselor on January 3, 2003. We find that complainant abandoned the harassment claim she previously raised with the EEO Counselor and initiated a separate EEO Counselor contact on the instant issue of suspension. Therefore, we find that the agency improperly dismissed complainant's complaint on the grounds that complainant failed to timely filed a formal complaint regarding the harassment issues that she raised in January 2003, and thereafter abandoned. Final Decision: Accordingly, the agency's decision to dismiss the complaint was improper and is REVERSED.	Sandra Prieto v. Department of Justice 01A34080 June 23 ,2004 . Sandra Prieto, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency. Appeal No. 01A34080 Agency No. P-2003-0163 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated May 28, 2003, 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. On January 3, 2003, complainant contacted the EEO office claiming that she was subjected to discriminatory harassment based on race. According to the EEO counseling records, complainant claimed that because she is the only Hispanic in her department, her supervisor treated her less favorably than other employees. The alleged disparity in treatment allegedly involved annual leave and work schedule issues. Complainant further claimed that her supervisor verbally harassed her. Complainant cited an incident where her supervisor hounded her to the point that she covered her ears and began shaking. Complainant also enumerated five additional incidents of harassment occurring from December 2, 2002 through December 16, 2002. Informal efforts to resolve complainant's concerns were unsuccessful, and after EEO Counseling was completed, the complainant signed a Notice of Right to File Individual Complaint (Notice) on February 3, 2003. The Notice indicated that complainant had to file a complaint within fifteen calendar days of its receipt. The record shows that complainant did not file a formal complaint regarding the matters for which she initiated EEO counseling in January 2003, as described above, within the limitation period. However, complainant thereafter received a letter on February 27, 2003, regarding an adverse action issued on February 18, 2003. Therein, the agency suspended complainant for seven calendar days effective March 17 to March 23, 2003, in lieu of a proposed demotion that had been issued on December 20, 2002. The agency letter informed complainant that she could pursue the EEO complaint process regarding the suspension. The record reflects that after receiving the letter of suspension, complainant contacted the agency's EEO office by letter dated March 29, 2003. In her letter, complainant indicated that she elected to file a formal complaint regarding her suspension through an EEO Counselor. Complainant stated that the seven-day suspension was an extremely harsh punishment. As a remedy, complainant requested back pay for the suspended days, and that the suspension letter be expunged from her personnel record. On April 4, 2003, complainant filed a formal complaint that is the subject of the instant appeal. Therein, complainant claimed that she was the victim of unlawful employment discrimination on the bases of race and national origin when on February 18, 2003, she was issued a seven-day suspension effective March 17 through March 23, 2003. By letter dated April 28, 2003, the agency determined that complainant had not undergone EEO counseling regarding the matter raised in her formal complaint. The agency requested that complainant provide an explanation why she did not address the issue of the February 18, 2003 letter of suspension during the EEO counseling that she initiated on January 3, 2003, and that was completed on February 3, 2003. The agency also requested that complainant provide an explanation why she waited more than fifteen days to file her complaint, from the date that she received the Notice. The agency noted that complainant received the Notice of Final Interview (Notice) on February 3, 2003, but that complainant filed her complaint on April 4, 2003. In a reply dated May 13, 2003 (amended by letter dated May 16, 2003), complainant stated that when she received the Notice issued on February 3, 2003, she elected to abandon the harassment claims against her supervisor because her working conditions were improving. However, complainant stated after receiving the suspension letter on February 27, 2003, she elected to pursued the EEO process to appeal the agency's action. Complainant contended that the suspension was a new issue independent from the issues of harassment she abandoned. Complainant stated that because her facility had only one EEO Counselor she attempted on various occasions to contact an EEO Counselor at another facility to start the EEO process, with no results. Complainant asserted that on March 7, 2003, she finally contacted a named EEO Counselor at her facility and indicated her intention to file an EEO complaint on the suspension issue. Complainant stated that the EEO Counselor provided her with a complaint form and informed her that she would be contacted after she, the named EEO Counselor, spoke with management officials. Complainant stated that on March 28, 2003, the EEO Counselor informed her by telephone that after talking to management the suspension issue could not be resolved informally. Complainant stated that she proceeded to file the EEO complaint form provided by the EEO Counselor. On May 28, 2003, the agency issued a final decision that is the subject of the instant appeal, dismissing the complaint pursuant to 29 C.F.R. § 1614.107 (a)(2). The agency determined that complainant's claim concerning her suspension issued on February 18, 2003, was not raised with an EEO Counselor during the EEO counseling process that initiated on January 3, 2003. The agency also dismissed the complaint on the grounds that complainant failed to timely file her complaint. The agency stated that complainant received the notice on February 3, 2003, but that she untimely filed her complaint on April 4, 2003. EEO Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor. In its May 28, 2003 final decision, the agency stated that official records fail to reflect that complainant underwent EEO counseling on the matter of the suspension. The record shows, however, that complainant provided a detailed explanation concerning her efforts to initiate EEO counseling on this matter. Specifically, in response to the suspension letter, complainant sent a letter to the EEO office, dated March 29, 2003, where she stated her election to pursue her suspension claim through the EEO process. Specifically, complainant stated that: I have chosen to file a formal complaint through an EEO Counselor. Moreover, complainant also indicated to the EEO office in a letter dated May 13, 2003, that she met with a named EEO Counselor on March 7, 2003, and brought to his attention the suspension issue; that the EEO Counselor consulted various agency officials; and that thereafter the EEO Counselor contacted complainant later in March 2003, and stated that he was unable to resolve the matter informally. The Commission notes that in its final decision, issued subsequent to complainant's letter of May 13, 2003, the agency does not specifically address complainant's claim that a named agency EEO Counselor had undertaken the action as described by complainant. The Commission determines that complainant raised a claim regarding a suspension with an EEO Counselor in March 2003, and the agency improperly dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(2). EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. As determined above, complainant's suspension claim is a separate incident which has no nexus to the various harassment incidents that complainant raised with an EEO Counselor on January 3, 2003. We find that complainant abandoned the harassment claim she previously raised with the EEO Counselor and initiated a separate EEO Counselor contact on the instant issue of suspension. Therefore, we find that the agency improperly dismissed complainant's complaint on the grounds that complainant failed to timely filed a formal complaint regarding the harassment issues that she raised in January 2003, and thereafter abandoned. Accordingly, the agency's decision to dismiss the complaint was improper and is REVERSED. The complaint, which as defined herein relates to complainant's suspension, is REMANDED to the agency for further processing in accordance with this decision and the applicable regulations. ORDER (E0900) 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 (K0501) 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 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 June 23 ,2004 __________________ Date	[ "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.106(b)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791"...	[ -0.05154391750693321, 0.07944393903017044, -0.0075293066911399364, 0.037979207932949066, 0.00405501713976264, 0.066130131483078, 0.035573042929172516, 0.014565731398761272, -0.009782182052731514, 0.009348238818347454, 0.026044990867376328, 0.028036028146743774, -0.03648059815168381, -0.096...
21	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53904_r.txt	01a53904_r.txt	TXT	text/plain	12,167	Jose M. Gutierrez v. Department of the Navy 01A53904 October 17, 2005 . Jose M. Gutierrez, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.	October 17, 2005	Appeal Number: 01A53904 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated March 31, 2005, dismissing his formal EEO 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. On January 12, 2005, complainant initiated contact with the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. In a formal complaint filed on March 10, 2005, complainant claimed that he was subjected to discrimination on the basis of national origin (Hispanic) when: on September 8, 2004, he learned that he was not selected for the position of Division Director, Ballistic Test Division. The agency dismissed the instant 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 occurred on January 12, 2005, which it found to be beyond the 45-day limitation period. On appeal, complainant, through his attorney, contends that his January 12, 2005 EEO Counselor contact was timely. Complainant states that on either September 14 or 15, 2004, he met with the agency Deputy Director concerning his non-selection. Complainant states that during the meeting, he emphasized the reasons for his non-selection and mentioned that he felt that his national origin played a factor in the non-selection. Complainant contends that the Deputy Director "ignored the expressed EEO concerns and advised [complainant] to contact the selecting official to establish the reasons for non-selection." Complainant contends that because he had concerns about a run-around, he contacted the EEO Officer immediately after his meeting with the Deputy Director. Complainant contends that while the EEO Officer informed him that he regularly meets with the Commanding Officer concerning EEO matters, he (the EEO Officer) recently mentioned to the Commanding Officer that a Hispanic employee would be coming to the EEO Office concerning his non-selection for the subject position. Complainant contends that he then contacted the selecting official requesting a meeting but the selecting official belatedly scheduled a meeting for October 20, 2004, to discuss his concerns relating to the non-selection. Complainant argues that because the meeting with the selecting official failed to resolve his concerns, he contacted the Human Resources Office and the EEO office on November 3, 2004, to initiate an administrative grievance challenging his non-selection. . . Complainant states "it is beyond dispute here that high Human Resources and Labor Relations officials worked together to mislead and misdirect [complainant] in order to preclude him from perfecting his EEO complaint within the standard 45-day complaint initiation period." Furthermore, complainant argues that the agency had constructive knowledge of the EEO complaint and that it should toll the time limitation. In response, the agency argues that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination more than 45 days prior to his initial January 12, 2005 EEO Counselor contact. The agency further argues that on November 3, 2004, complainant filed a grievance concerning his non-selection. The agency argues that complainant was seeking to overcome his untimely EEO Counselor contact because his election to pursue the non-selection claim in the grievance forum failed to yield the desired result. In support of its contentions, the agency submitted copies of declarations from two management officials stating that complainant expressed his wish not to raise his concerns through the EEO process; and that official EEO posters outlining the 45-day limitation period were on display. Legal Analysis: 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 alleged discriminatory event occurred on September 8, 2004, but complainant did not contact an EEO Counselor until January 12, 2005, which is beyond the forty-five day limitation period. The record contains a copy of the Deputy Director's declaration. Therein, the Deputy Director stated that some time in September 2004, complainant saw her concerning the subject non-selection. The Deputy Director further stated that she advised complainant to speak to the selecting official to find out why he was not selected for the position of Division Director. The Deputy Director stated that after she questioned complainant whether he felt that his race or national origin were factors in the non-selection, complainant stated that he did not believe either his race or national origin had anything to do with the non-selection. The Deputy Director stated that complainant "advised me that he did not wish to raise his concerns through the EEO process." Furthermore, the Deputy Director stated that she never advised complainant to file a grievance, and that she recommended he contact the Employee and Labor Relations Division concerning his concerns "about certain conduct and qualification issues he stated related to his concern about non-selection, as he made clear that he did not believe discrimination was an issue in his non-selection." The record also contains a copy of the EEO Specialist's declaration. Therein, the EEO Specialist stated that official EEO notices are posted on bulletin boards throughout the division that advise employees of their right to file EEO complaints. In support of her contentions, the EEO Specialist submitted a copy of the official EEO notice outlining the 45-day limitation period and a list of bulletin boards where the official EEO notices were posted throughout the division. Further, the EEO Specialist stated that in addition to the official EEO notices, management officials, including complainant, were required to participate in EEO training. The record contains copies of complainant's FY 2002, 2003 and 2004 training reports wherein it shows that complainant attended the EEO Refresher training sessions on August 13, 2002 and September 23, 2004, and Labor Relations Supervisory training session from March 30, 2004 to April 1, 2004, prior to the alleged discriminatory event. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990). The Commission finds that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination more than 45 days prior to his initial EEO Counselor contact. Complainant failed to provide sufficient justification for extending or tolling the time limitation. Final Decision: Accordingly, the agency's decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED.	Jose M. Gutierrez v. Department of the Navy 01A53904 October 17, 2005 . Jose M. Gutierrez, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01A53904 Agency No. DON 05-00174-003 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated March 31, 2005, dismissing his formal EEO 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. On January 12, 2005, complainant initiated contact with the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. In a formal complaint filed on March 10, 2005, complainant claimed that he was subjected to discrimination on the basis of national origin (Hispanic) when: on September 8, 2004, he learned that he was not selected for the position of Division Director, Ballistic Test Division. The agency dismissed the instant 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 occurred on January 12, 2005, which it found to be beyond the 45-day limitation period. On appeal, complainant, through his attorney, contends that his January 12, 2005 EEO Counselor contact was timely. Complainant states that on either September 14 or 15, 2004, he met with the agency Deputy Director concerning his non-selection. Complainant states that during the meeting, he emphasized the reasons for his non-selection and mentioned that he felt that his national origin played a factor in the non-selection. Complainant contends that the Deputy Director "ignored the expressed EEO concerns and advised [complainant] to contact the selecting official to establish the reasons for non-selection." Complainant contends that because he had concerns about a run-around, he contacted the EEO Officer immediately after his meeting with the Deputy Director. Complainant contends that while the EEO Officer informed him that he regularly meets with the Commanding Officer concerning EEO matters, he (the EEO Officer) recently mentioned to the Commanding Officer that a Hispanic employee would be coming to the EEO Office concerning his non-selection for the subject position. Complainant contends that he then contacted the selecting official requesting a meeting but the selecting official belatedly scheduled a meeting for October 20, 2004, to discuss his concerns relating to the non-selection. Complainant argues that because the meeting with the selecting official failed to resolve his concerns, he contacted the Human Resources Office and the EEO office on November 3, 2004, to initiate an administrative grievance challenging his non-selection. . . Complainant states "it is beyond dispute here that high Human Resources and Labor Relations officials worked together to mislead and misdirect [complainant] in order to preclude him from perfecting his EEO complaint within the standard 45-day complaint initiation period." Furthermore, complainant argues that the agency had constructive knowledge of the EEO complaint and that it should toll the time limitation. In response, the agency argues that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination more than 45 days prior to his initial January 12, 2005 EEO Counselor contact. The agency further argues that on November 3, 2004, complainant filed a grievance concerning his non-selection. The agency argues that complainant was seeking to overcome his untimely EEO Counselor contact because his election to pursue the non-selection claim in the grievance forum failed to yield the desired result. In support of its contentions, the agency submitted copies of declarations from two management officials stating that complainant expressed his wish not to raise his concerns through the EEO process; and that official EEO posters outlining the 45-day limitation period were on display. 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 alleged discriminatory event occurred on September 8, 2004, but complainant did not contact an EEO Counselor until January 12, 2005, which is beyond the forty-five day limitation period. The record contains a copy of the Deputy Director's declaration. Therein, the Deputy Director stated that some time in September 2004, complainant saw her concerning the subject non-selection. The Deputy Director further stated that she advised complainant to speak to the selecting official to find out why he was not selected for the position of Division Director. The Deputy Director stated that after she questioned complainant whether he felt that his race or national origin were factors in the non-selection, complainant stated that he did not believe either his race or national origin had anything to do with the non-selection. The Deputy Director stated that complainant "advised me that he did not wish to raise his concerns through the EEO process." Furthermore, the Deputy Director stated that she never advised complainant to file a grievance, and that she recommended he contact the Employee and Labor Relations Division concerning his concerns "about certain conduct and qualification issues he stated related to his concern about non-selection, as he made clear that he did not believe discrimination was an issue in his non-selection." The record also contains a copy of the EEO Specialist's declaration. Therein, the EEO Specialist stated that official EEO notices are posted on bulletin boards throughout the division that advise employees of their right to file EEO complaints. In support of her contentions, the EEO Specialist submitted a copy of the official EEO notice outlining the 45-day limitation period and a list of bulletin boards where the official EEO notices were posted throughout the division. Further, the EEO Specialist stated that in addition to the official EEO notices, management officials, including complainant, were required to participate in EEO training. The record contains copies of complainant's FY 2002, 2003 and 2004 training reports wherein it shows that complainant attended the EEO Refresher training sessions on August 13, 2002 and September 23, 2004, and Labor Relations Supervisory training session from March 30, 2004 to April 1, 2004, prior to the alleged discriminatory event. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990). The Commission finds that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination more than 45 days prior to his initial EEO Counselor contact. Complainant failed to provide sufficient justification for extending or tolling the time limitation. Accordingly, the agency's decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 October 17, 2005 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42...	[ -0.08019477874040604, 0.08186549693346024, -0.005389698781073093, 0.05968877300620079, 0.057670727372169495, 0.018571140244603157, -0.007653647102415562, 0.01741776056587696, -0.004067286383360624, -0.009735515341162682, 0.07380258291959763, -0.030788401141762733, -0.020409630611538887, 0....
22	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120083756.txt	0120083756.txt	TXT	text/plain	10,622	James L. Cook, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.	May 19, 2008	Appeal Number: 0120083756 Case Facts: Complainant filed a timely appeal with this Commission from the agency's decision dismissing his 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. The EEO Counselor's report reflects that on May 19, 2008, complainant sought EEO counseling regarding claims of discrimination. Informal efforts to resolve complainant's concerns were unsuccessful. Subsequently, on June 23, 2008, complainant filed a formal complaint claiming that he was discriminated against on the bases of race (Black) and disability (Nonparalytic Orthopedic Impairments) when, on March 29, 2008, he was wrongfully terminated from his position of Range Controller, GS-0303-06. On July 1, 2008, the agency issued a final decision dismissing the complaint for untimely EEO Counselor contact. The agency found that the alleged discriminatory event occurred on March 29, 2008, but that complainant did not initiate contact with an EEO Counselor until May 19, 2008, which was beyond the forty-five day limitation period. The agency further noted that complainant contacted an EEO Specialist on March 21, 2008, but indicated to the EEO Specialist that he did not want to initiate the EEO process. Specifically, the agency indicated that when the EEO Specialist asked complainant if he was initiating the EEO counseling process, complainant replied: "No - I'm just trying to find out what I have to do to get the bar lifted so that I may come back on base." The agency further stated that the EEO Specialist advised complainant of the EEO process, including the 45-date time limit, and complainant responded, "No - I do not want to do this-I just want to be able to get back to work." The agency further noted that on March 29, 2008, complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding his termination. On appeal, complainant argues that he timely initiated EEO counseling when on March 21, 2008, when he called the EEO office regarding his termination. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her 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). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intends to pursue EEO counseling when she initiates EEO contact. See Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990); Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5, 2001), request for reconsideration denied, EEOC Request No. 05A10279 (May 9, 2001). We find that complainant failed to exhibit the requisite intent to initiate EEO counseling prior to May 19, 2008. The record contains an affidavit from the EEO Specialist stating that while complainant contacted him on March 21, 2008 to report that he had been terminated from his position and was not allowed to re-enter the base, complainant indicated that he did not want to initiate EEO counseling at that time. The EEO Specialist also attests that he did not receive any other communication from complainant until May 19, 2008, when complainant called to indicate that he was upset because he had not received an answer to his request to be allowed to re-enter the base, and that he wanted to send a statement by fax in reference to his termination. The EEO Specialist stated that after reminding complainant of the 45-day time limit, complainant acknowledged that he knew he was past the 45-days time limit to initiate the EEO counseling process, but still wanted to fax the statement. In his statement, complainant alleged for the first time that he was discriminated against regarding his termination. Therefore, we find that complainant initially contacted a counselor on May 19, 2008. Further, the record in this case contains the EEO Counselor's report wherein it indicates that when requested to provide an explanation for not initiating his EEO counseling until May 19, 2008, complainant states that he initiated EEO Counselor contact only after his efforts at resolution through management and the MSPB appeal process failed. Complainant's reliance on management and the MSPB process to resolve his claims does not excuse an untimely EEO Counselor contact.1 The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Therefore, we find that complainant failed to provide sufficient justification for waiving or tolling the time limitation. Final Decision: Accordingly, the agency's decision dismissing the complaint for untimely EEO counselor contact is AFFIRMED.	James L. Cook, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. Appeal No. 0120083756 Agency No. ARDRUM08MAY02098 DECISION Complainant filed a timely appeal with this Commission from the agency's decision dismissing his 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. The EEO Counselor's report reflects that on May 19, 2008, complainant sought EEO counseling regarding claims of discrimination. Informal efforts to resolve complainant's concerns were unsuccessful. Subsequently, on June 23, 2008, complainant filed a formal complaint claiming that he was discriminated against on the bases of race (Black) and disability (Nonparalytic Orthopedic Impairments) when, on March 29, 2008, he was wrongfully terminated from his position of Range Controller, GS-0303-06. On July 1, 2008, the agency issued a final decision dismissing the complaint for untimely EEO Counselor contact. The agency found that the alleged discriminatory event occurred on March 29, 2008, but that complainant did not initiate contact with an EEO Counselor until May 19, 2008, which was beyond the forty-five day limitation period. The agency further noted that complainant contacted an EEO Specialist on March 21, 2008, but indicated to the EEO Specialist that he did not want to initiate the EEO process. Specifically, the agency indicated that when the EEO Specialist asked complainant if he was initiating the EEO counseling process, complainant replied: "No - I'm just trying to find out what I have to do to get the bar lifted so that I may come back on base." The agency further stated that the EEO Specialist advised complainant of the EEO process, including the 45-date time limit, and complainant responded, "No - I do not want to do this-I just want to be able to get back to work." The agency further noted that on March 29, 2008, complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding his termination. On appeal, complainant argues that he timely initiated EEO counseling when on March 21, 2008, when he called the EEO office regarding his termination. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her 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). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intends to pursue EEO counseling when she initiates EEO contact. See Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990); Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5, 2001), request for reconsideration denied, EEOC Request No. 05A10279 (May 9, 2001). We find that complainant failed to exhibit the requisite intent to initiate EEO counseling prior to May 19, 2008. The record contains an affidavit from the EEO Specialist stating that while complainant contacted him on March 21, 2008 to report that he had been terminated from his position and was not allowed to re-enter the base, complainant indicated that he did not want to initiate EEO counseling at that time. The EEO Specialist also attests that he did not receive any other communication from complainant until May 19, 2008, when complainant called to indicate that he was upset because he had not received an answer to his request to be allowed to re-enter the base, and that he wanted to send a statement by fax in reference to his termination. The EEO Specialist stated that after reminding complainant of the 45-day time limit, complainant acknowledged that he knew he was past the 45-days time limit to initiate the EEO counseling process, but still wanted to fax the statement. In his statement, complainant alleged for the first time that he was discriminated against regarding his termination. Therefore, we find that complainant initially contacted a counselor on May 19, 2008. Further, the record in this case contains the EEO Counselor's report wherein it indicates that when requested to provide an explanation for not initiating his EEO counseling until May 19, 2008, complainant states that he initiated EEO Counselor contact only after his efforts at resolution through management and the MSPB appeal process failed. Complainant's reliance on management and the MSPB process to resolve his claims does not excuse an untimely EEO Counselor contact.1 The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Therefore, we find that complainant failed to provide sufficient justification for waiving or tolling the time limitation. Accordingly, the agency's decision dismissing the complaint for untimely EEO counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0408) 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), 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, D.C. 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 (S0408) 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 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 (Z1008) 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 December 24, 2008 Date 1 We also take notice that in a letter dated July 29, 2008, complainant's wife acknowledged that complainant's complaint was dismissed "due to the fact that we were outside our 45 day window because we were waiting on the MSPB board [sic] to respond." ?? ?? ?? ?? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 77960 Washington, D.C. 20013	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990)", "Menard v. Department of the Navy, EEOC Appeal No. 01990626 (Ja...	[ -0.05868281424045563, 0.08969421684741974, -0.030581999570131302, 0.004989169538021088, 0.03394044190645218, 0.09703455120325089, 0.04939243197441101, -0.01567910984158516, -0.04073381796479225, -0.004044693894684315, 0.03608796373009682, 0.012868945486843586, -0.03153228759765625, -0.0178...
23	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520140162.txt	0520140162.txt	TXT	text/plain	17,795	Lee R.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.	December 11, 2013	Appeal Number: 0120132814 Background: Complainant alleged that the Agency discriminated against him on the bases of age when he was forced to retire after he received a letter of removal, dated October 25, 2012, for improper conduct, effective November 30, 2012. Complainant alleged that his retiring on November 29, 2012 was constructive discharge. In a decision, dated July 9, 2013, the Agency dismissed the complaint on the grounds that Complainant had failed to contact an EEO Counselor within the 45 days required pursuant to 29 C.F.R. § 1614.107(a)(2). In so concluding, the Agency found that Complainant initiated EEO Counselor contact on February 26, 2013, concerning the alleged discriminatory event on October 25, 2012. The Agency noted that an EEO Poster 72 (Equal Employment Is the Law) was on display at the facility where Complainant worked and that the poster set forth the 45- day requirement for initiating timely EEO Counselor contact. Addressing Complainant's allegation that he was unable to request counseling in a timely manner, the Agency noted that Complainant alleged that when he called the telephone number identified on the poster, a recording informed him that the number was a non-working number. In its decision, the Agency identified the contact number on the poster as 888-EEO-USPS which worked. The Agency also noted that Complainant could have obtained the number from another facility or from the Agency's website. In our previous decision, the Commission affirmed the Agency's dismissal. We determined that the alleged discriminatory event occurred on October 25, 2012 and that, consequently, when Complainant contacted an EEO Counselor on February 26, 2013, the contact was untimely. We found that Complainant had a reasonable suspicion of discrimination to initiate timely contact and that he had not presented any persuasive arguments or evidence warranting an extension pursuant to 29 C.F.R. § 1614.604(c). In his request to reconsider, Complainant asserts that in its decision, the Commission failed to address his documentary evidence that he had contacted an EEOC Administrative Judge (AJ) in a letter, dated December 8, 2012, to file his complaint of age discrimination. That contact, Complainant argues, was within 45 days of the alleged discrimination and therefore timely. He recounted that he had tried calling the telephone number on the EEO poster multiple times but that it was a non-working number. He also urges that the EEO Poster did not contain the alphanumeric number referenced in the Agency's decision and the number provided on the poster consisted only of numbers with no letters. Complainant also recounted that his supervisor laughed at him and walked away when he asked about obtaining the Agency EEO number. He asserts that when he contacted the EEO office on February 26, 2013, it was within five days of his having received the AJ's response to his December 8, 2012 letter. Complainant noted that, according to the AJ's reply, his letter of December 8, 2012, would be considered the date of his EEO Counselor contact and therefore timely. The Agency did not submit a brief or statement in response to Complainant's request to reconsider nor did it do so in Complainant's initial appeal. Legal Analysis: EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission exercises its discretion under the criteria of 29 C.F.R. § 1614.405(c), to grant the request. ISSUE PRESENTED Was there error in concluding that Complainant's Equal Employment Opportunity (EEO) Counselor contact was untimely? BACKGROUND Complainant alleged that the Agency discriminated against him on the bases of age when he was forced to retire after he received a letter of removal, dated October 25, 2012, for improper conduct, effective November 30, 2012. Complainant alleged that his retiring on November 29, 2012 was constructive discharge. In a decision, dated July 9, 2013, the Agency dismissed the complaint on the grounds that Complainant had failed to contact an EEO Counselor within the 45 days required pursuant to 29 C.F.R. § 1614.107(a)(2). In so concluding, the Agency found that Complainant initiated EEO Counselor contact on February 26, 2013, concerning the alleged discriminatory event on October 25, 2012. The Agency noted that an EEO Poster 72 (Equal Employment Is the Law) was on display at the facility where Complainant worked and that the poster set forth the 45- day requirement for initiating timely EEO Counselor contact. Addressing Complainant's allegation that he was unable to request counseling in a timely manner, the Agency noted that Complainant alleged that when he called the telephone number identified on the poster, a recording informed him that the number was a non-working number. In its decision, the Agency identified the contact number on the poster as 888-EEO-USPS which worked. The Agency also noted that Complainant could have obtained the number from another facility or from the Agency's website. In our previous decision, the Commission affirmed the Agency's dismissal. We determined that the alleged discriminatory event occurred on October 25, 2012 and that, consequently, when Complainant contacted an EEO Counselor on February 26, 2013, the contact was untimely. We found that Complainant had a reasonable suspicion of discrimination to initiate timely contact and that he had not presented any persuasive arguments or evidence warranting an extension pursuant to 29 C.F.R. § 1614.604(c). In his request to reconsider, Complainant asserts that in its decision, the Commission failed to address his documentary evidence that he had contacted an EEOC Administrative Judge (AJ) in a letter, dated December 8, 2012, to file his complaint of age discrimination. That contact, Complainant argues, was within 45 days of the alleged discrimination and therefore timely. He recounted that he had tried calling the telephone number on the EEO poster multiple times but that it was a non-working number. He also urges that the EEO Poster did not contain the alphanumeric number referenced in the Agency's decision and the number provided on the poster consisted only of numbers with no letters. Complainant also recounted that his supervisor laughed at him and walked away when he asked about obtaining the Agency EEO number. He asserts that when he contacted the EEO office on February 26, 2013, it was within five days of his having received the AJ's response to his December 8, 2012 letter. Complainant noted that, according to the AJ's reply, his letter of December 8, 2012, would be considered the date of his EEO Counselor contact and therefore timely. The Agency did not submit a brief or statement in response to Complainant's request to reconsider nor did it do so in Complainant's initial appeal. ANALYSIS AND FINDINGS After reconsideration of the appellate decision, the entire record, and Commission precedent, the Commission exercises its discretion to reconsider the matter herein under the criteria of 29 C.F.R. § 1614.405(c). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, 45 days of the effective date of the action. The 45-day time requirement is subject to waiver, estoppel, and equitable tolling. See 29 C.F.R. § 1614.604(c). The record contains the EEO Counselor's Report which notes that Complainant initiated EEO Counselor contact on February 26, 2013. The EEO Counselor indicated in the report that on June 4, 2013, she had verified that EEO Poster 72 was on display in Complainant's facility. Contained in the record is a letter, dated December 8, 2012, from Complainant to the EEOC's Baltimore Field Office in which he recounted that he had called the telephone numbers on the EEO posters in his work facility but the telephone numbers did not work. He claimed that he talked to his supervisor and he laughed at him and walked off. In a letter, dated February 21, 2013, the EEOC's Chief Administrative Judge (AJ) in the Baltimore Field Office's responded to Complainant's December 8, 2012 letter. In the letter, the AJ recounted Complainant's attempt to call the Agency using the number provided on the EEO poster without success. The AJ informed Complainant that to start the process, he was required to first seek counseling with the Agency. She suggested that he go to the Agency to find an EEO Counselor or to contact an EEO Counselor at the Agency's Main Post Office. The AJ also suggested that, if Complainant continued to have difficulties, he should call the Commission's Office of Federal Operations and Complainant was provided two telephone numbers. She informed Complainant that he needed to inform the EEO Counselor that he had attempted to seek counseling. The AJ informed Complainant that his December 8, 2012 letter "should serve as the date of initial contact with the EEO office." Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)(quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). As an initial matter, the Commission addresses the date of the alleged discrimination. In our decision, we determined that it was October 12, 2012. However, that finding was error. October 12, 2012, was the date when Complainant was sent notice of his removal. The effective date of the removal was not until November 30, 2012. Therefore, pursuant to 29 C.F.R. 1614.105(a)(1), Complainant would have had 30 days from November 30, 2012, not October 12, 2012, to initiate timely EEO Counselor contact. Nonetheless, the error was harmless because ultimately, Complainant was not removed. He instead retired on November 29, 2012, which, we find, is the date of the alleged discriminatory harm and the date that should be used to calculate the timeliness of EEO Counselor contact. Complainant has asserted, as before, that he tried on several occasions to contact the EEO Counselor by telephone to no avail.2 Complainant's claims that he tried to contact the EEO Office are consistent with his December 8, 2012 letter to the AJ and reflected his intention to pursue the EEO process. Although the EEO Counselor's Report indicates that the Counselor had seen a copy of the AJ's letter, there is no indication in the EEO Counselor's Report that the EEO Counselor ever made inquiry into Complainant's claims concerning the reason for delayed contact. In addition, though the EEO Counselor checked off in her report that the EEO Poster 72 was on display, the Agency provided no evidence that this was the poster on display when Complainant obtained a telephone number and what information the poster contained. The Agency did not produce a copy of the poster itself for the record. There is no sworn statement from any Agency official indicating whether the poster it referenced in its decision was up-to-date; whether it was the same poster on display when Complainant obtained a telephone number from it; and how long the referenced poster had been placed on display. See Sewell v. Dep't of Transportation, EEOC Request No. 05A20904( Apr.1, 2004)(untimely EEO Counselor contact where affidavit indicating when EEO poster was on display and a copy of EEO poster provided). Further, the EEO Counselor did not check for the poster's existence until in June 2013, months after Complainant's February 26, 2013, contact with her and months after Complainant's attempts to contact the EEO office. Lacking an affidavit or sworn statement attesting to the poster and its information, and in light of Complainant's dispute concerning the telephone information provided on the poster, (an assertion consistent with Complainant's documented attempt to pursue EEO counseling) and his documented attempt to pursue EEO counseling in a timely manner, the Commission cannot conclude that the Agency satisfied its burden on the issue of timeliness by providing no more than an unsupported assertion in its decision. See Quinn v. Dep't of the Army, EEOC Appeal No. 0120100695 (May 18, 2010)(no sworn statement from an EEO official about EEO posting or a copy of posting), reconsideration denied, EEOC Request No. 0520100429 (July 28, 2010). Under these circumstances, we exercise our discretion to reconsider the previous determination and apply the principle of equitable estoppel to toll the time limitation period.3	Lee R.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Request No. 0520140162 Appeal No. 0120132814 Agency No. 4K-210-0039-13 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120132814 (December 11, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission exercises its discretion under the criteria of 29 C.F.R. § 1614.405(c), to grant the request. ISSUE PRESENTED Was there error in concluding that Complainant's Equal Employment Opportunity (EEO) Counselor contact was untimely? BACKGROUND Complainant alleged that the Agency discriminated against him on the bases of age when he was forced to retire after he received a letter of removal, dated October 25, 2012, for improper conduct, effective November 30, 2012. Complainant alleged that his retiring on November 29, 2012 was constructive discharge. In a decision, dated July 9, 2013, the Agency dismissed the complaint on the grounds that Complainant had failed to contact an EEO Counselor within the 45 days required pursuant to 29 C.F.R. § 1614.107(a)(2). In so concluding, the Agency found that Complainant initiated EEO Counselor contact on February 26, 2013, concerning the alleged discriminatory event on October 25, 2012. The Agency noted that an EEO Poster 72 (Equal Employment Is the Law) was on display at the facility where Complainant worked and that the poster set forth the 45- day requirement for initiating timely EEO Counselor contact. Addressing Complainant's allegation that he was unable to request counseling in a timely manner, the Agency noted that Complainant alleged that when he called the telephone number identified on the poster, a recording informed him that the number was a non-working number. In its decision, the Agency identified the contact number on the poster as 888-EEO-USPS which worked. The Agency also noted that Complainant could have obtained the number from another facility or from the Agency's website. In our previous decision, the Commission affirmed the Agency's dismissal. We determined that the alleged discriminatory event occurred on October 25, 2012 and that, consequently, when Complainant contacted an EEO Counselor on February 26, 2013, the contact was untimely. We found that Complainant had a reasonable suspicion of discrimination to initiate timely contact and that he had not presented any persuasive arguments or evidence warranting an extension pursuant to 29 C.F.R. § 1614.604(c). In his request to reconsider, Complainant asserts that in its decision, the Commission failed to address his documentary evidence that he had contacted an EEOC Administrative Judge (AJ) in a letter, dated December 8, 2012, to file his complaint of age discrimination. That contact, Complainant argues, was within 45 days of the alleged discrimination and therefore timely. He recounted that he had tried calling the telephone number on the EEO poster multiple times but that it was a non-working number. He also urges that the EEO Poster did not contain the alphanumeric number referenced in the Agency's decision and the number provided on the poster consisted only of numbers with no letters. Complainant also recounted that his supervisor laughed at him and walked away when he asked about obtaining the Agency EEO number. He asserts that when he contacted the EEO office on February 26, 2013, it was within five days of his having received the AJ's response to his December 8, 2012 letter. Complainant noted that, according to the AJ's reply, his letter of December 8, 2012, would be considered the date of his EEO Counselor contact and therefore timely. The Agency did not submit a brief or statement in response to Complainant's request to reconsider nor did it do so in Complainant's initial appeal. ANALYSIS AND FINDINGS After reconsideration of the appellate decision, the entire record, and Commission precedent, the Commission exercises its discretion to reconsider the matter herein under the criteria of 29 C.F.R. § 1614.405(c). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, 45 days of the effective date of the action. The 45-day time requirement is subject to waiver, estoppel, and equitable tolling. See 29 C.F.R. § 1614.604(c). The record contains the EEO Counselor's Report which notes that Complainant initiated EEO Counselor contact on February 26, 2013. The EEO Counselor indicated in the report that on June 4, 2013, she had verified that EEO Poster 72 was on display in Complainant's facility. Contained in the record is a letter, dated December 8, 2012, from Complainant to the EEOC's Baltimore Field Office in which he recounted that he had called the telephone numbers on the EEO posters in his work facility but the telephone numbers did not work. He claimed that he talked to his supervisor and he laughed at him and walked off. In a letter, dated February 21, 2013, the EEOC's Chief Administrative Judge (AJ) in the Baltimore Field Office's responded to Complainant's December 8, 2012 letter. In the letter, the AJ recounted Complainant's attempt to call the Agency using the number provided on the EEO poster without success. The AJ informed Complainant that to start the process, he was required to first seek counseling with the Agency. She suggested that he go to the Agency to find an EEO Counselor or to contact an EEO Counselor at the Agency's Main Post Office. The AJ also suggested that, if Complainant continued to have difficulties, he should call the Commission's Office of Federal Operations and Complainant was provided two telephone numbers. She informed Complainant that he needed to inform the EEO Counselor that he had attempted to seek counseling. The AJ informed Complainant that his December 8, 2012 letter "should serve as the date of initial contact with the EEO office." Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)(quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). As an initial matter, the Commission addresses the date of the alleged discrimination. In our decision, we determined that it was October 12, 2012. However, that finding was error. October 12, 2012, was the date when Complainant was sent notice of his removal. The effective date of the removal was not until November 30, 2012. Therefore, pursuant to 29 C.F.R. 1614.105(a)(1), Complainant would have had 30 days from November 30, 2012, not October 12, 2012, to initiate timely EEO Counselor contact. Nonetheless, the error was harmless because ultimately, Complainant was not removed. He instead retired on November 29, 2012, which, we find, is the date of the alleged discriminatory harm and the date that should be used to calculate the timeliness of EEO Counselor contact. Complainant has asserted, as before, that he tried on several occasions to contact the EEO Counselor by telephone to no avail.2 Complainant's claims that he tried to contact the EEO Office are consistent with his December 8, 2012 letter to the AJ and reflected his intention to pursue the EEO process. Although the EEO Counselor's Report indicates that the Counselor had seen a copy of the AJ's letter, there is no indication in the EEO Counselor's Report that the EEO Counselor ever made inquiry into Complainant's claims concerning the reason for delayed contact. In addition, though the EEO Counselor checked off in her report that the EEO Poster 72 was on display, the Agency provided no evidence that this was the poster on display when Complainant obtained a telephone number and what information the poster contained. The Agency did not produce a copy of the poster itself for the record. There is no sworn statement from any Agency official indicating whether the poster it referenced in its decision was up-to-date; whether it was the same poster on display when Complainant obtained a telephone number from it; and how long the referenced poster had been placed on display. See Sewell v. Dep't of Transportation, EEOC Request No. 05A20904( Apr.1, 2004)(untimely EEO Counselor contact where affidavit indicating when EEO poster was on display and a copy of EEO poster provided). Further, the EEO Counselor did not check for the poster's existence until in June 2013, months after Complainant's February 26, 2013, contact with her and months after Complainant's attempts to contact the EEO office. Lacking an affidavit or sworn statement attesting to the poster and its information, and in light of Complainant's dispute concerning the telephone information provided on the poster, (an assertion consistent with Complainant's documented attempt to pursue EEO counseling) and his documented attempt to pursue EEO counseling in a timely manner, the Commission cannot conclude that the Agency satisfied its burden on the issue of timeliness by providing no more than an unsupported assertion in its decision. See Quinn v. Dep't of the Army, EEOC Appeal No. 0120100695 (May 18, 2010)(no sworn statement from an EEO official about EEO posting or a copy of posting), reconsideration denied, EEOC Request No. 0520100429 (July 28, 2010). Under these circumstances, we exercise our discretion to reconsider the previous determination and apply the principle of equitable estoppel to toll the time limitation period.3 CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120132814 is VACATED and the agency's decision is REVERSED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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. 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 1-28-16 __________________ Date 2 In a November 17, 2013 letter in the initial appeal, Complainant informed the Office of Federal Operations that he had written a letter to the AJ because all EEO posters in the facility where he had worked contained non-working numbers. He also stated that he received no cooperation from the Postmaster or the Assistant Postmaster when he sought the correct EEO Counselor contact information. Complainant noted that the "last two times" when he had checked, "old posters" were still on display at his previous work facility. 3 The Commission notes that, in other decisions, we have considered what constitutes proper contact for initiating counseling. See Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 8, 1996)(official "logically connected" to the EEO process and intent to pursue the EEO process). We also point out that the Commission has held that where proper appeal rights have been given, an appeal is untimely filed where the appeal is mailed to the wrong office, even if it would have been timely filed if mailed directly to the Commission. Henry v. Dep't of Veterans Aff., EEOC Request No. 05901116 (Nov. 30, 1990). But see, York v. Dep't of Def. , EEOC Request No. 05A00946 (Dec. 7, 2001); Hyland v. Dep't of Education, EEOC Request No. 05930037 (May 27, 1993)(complainant sent appeal to the EEO Office and not to Commission); Rodriguez v. Dep't of the Air Force, EEOC Request No. 05940933 (June 2, 1995)(confused complainant mailed appeal within limitations period to an EEOC District Office); Thompson v. Dep't of the Army, EEOC Request No. 05940588 (Feb. 24, 1995)(complainant filed appeal with agency's EEO office); Lord v. U.S. Postal Serv., EEOC App. No. 05890175 (June 9, 1989)(agency should have promptly forwarded appeal filed with agency to the Commission). ------------------------------------------------------------ ------------------------------------------------------------ 05-2014-0082	[ "Complainant v. U.S. Postal Service, EEOC Appeal No. 0120132814 (December 11, 2013)", "Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)", "Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)", "Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993)", "Gens v...	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24	https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024001068.pdf	2024001068.pdf	PDF	application/pdf	12,362	Bert P .,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency.	November 2, 2023	Appeal Number: 2023000458 Background: At the time of events giving rise to th is complaint, Complainant worked for the Agency as a WS - 5803- 12 Heavy Mobile Equipment Mechanic Supervisor in the Agency’ s Engine Branch, Major Assembly Division (MAD), U.S. Army Materiel Support Command -Korea (MSC -K), Camp Carroll, South Korea. Report of Investigation (ROI) at 412 -13. Complainant initiated contact with an EEO C ounselor on June 16, 2021. On July 13, 2021, Complainant filed a formal EEO complaint alleging that the Agency discriminated agai nst him based on reprisal (reporting fraud, waste, and abuse to the EEO Office) when: 1. On May 21, 2021, he received a Notice of Proposed Suspension for One Day from his supervisor . 2. On June 16, 2021, he alleged that the Division Chief and the Deputy Director for Maintenance published an unidentified malicious statement against him with the intent to hurt him professionally . 3. On June 29, 2021, the Deputy Director for Maintenance denied his request to attend a Mobilization Deployment Planning Course . 4. He further alleged ongoing harassment because he previously reported various acts of fraud, waste, and abuse in his workplace to the U.S. Army Garrison Daegu EEO Office, which resulted in a 15- 6 Command Investigation being initiated. Complainant subsequently amended his EEO complaint, alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 5. On July 6, 2021, he alleged that he was removed from his position as the Engine Branch Chief and rea ssigned to a position as the Tactical Wheeled Vehicle Branch Chief. 6. For June 9, 2021, he alleged that he was forced to accept 1.5 hours of compensatory time off in place of the overtime he requested. 7. On or about September 1, 2021, he alleged that his com mand attempted to reassign him to a nonexistent position within the 19th Expeditionary Sustainment Command (ESC) . 8. On October 14, 2021, he received a written counseling from the Deputy Director for Maintenance for “Failure to Follow Proper Procedures” . 9. On October 14, 2021, he received the decision letter on his proposed one -day suspension with no pay, directing him not to report to work on October 20, 2021. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, the Agency filed a m otion to dismiss, arguing that Complainant ’s comp laint failed to state a claim because he was alleging reprisal for reporting fraud, waste, and abuse and not reprisal for protected EEO activity. Specifically , the Agency argued that Complainant failed to demonstrate that he was subjected to reprisal for protected EEO activity and emphasized that in his formal EEO complaint, Complainant clearly indicated that he was alleging reprisal based on “20210415 Harassment/fraud/wast[e].”2 In support of its motion, the Agency provided an affidavit from the EEO Manager who interacted with Complainant on April 15, 2021, and determined that Complainant’s allegations were not EEO related. Complainant responded to the Agency’ s Motion to Dismiss , objecting to the inclusion of the affidavit, as he believed that it constituted a conflict of interest given the EEO Manager’s neutral role in the EEO process. He also argued that his EEO complaint stated a n EEO claim because he reported his allegations of fraud, waste, and abuse to the EEO Office. According to Complainant , as a result of reporting these allegations, he was subjected to harassment that was unwelcome and was so severe that he left MSC -K.3 On August 1, 2022, the AJ issued an order, rejecting, in relevant part, Complainant’s objection to the EEO Manager’s aff idavit. The AJ ultimately issued a decision without a heari ng in favor of the Agency. Regarding claims 1 to 4, the AJ found that Complainant’s allegations of reprisal for re porting fraud, waste, and abuse , constituted whistleblower activity and failed to state an EEO claim. As for claims 5 to 9, the AJ found that even if Complainant’s erroneous filing with the EEO Office constituted protected EEO activity, the record was devoid of any evidence that that any of the actions alleged violated Title VII or any other EEO law. Based on the foregoing, the AJ found that a decision without a hearing in favor of the Agency was warranted. The Agency subsequently issued a final order adopting the AJ ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant then appealed the Agency’s final order to the Commission, arguing that the AJ erred in dismissing his complaint for failure to state a claim. While Complainant acknowledged that he wrote “ 20210415 Harassment/fraud/wast[e]” in his formal complaint, he emphasized that he clearly stated in his formal complaint that his prior protected EEO activity consisted of complaining about “ favoritism to the Korean National employees and retaliatory actions taken by [his] supervisors against [him]. ” Furthermore, Complainant argued that the inclusion of the EEO Manager’s affidavit not only constituted a conflict of interest but also a discovery violation, as the AJ had not authorized discovery when the Agency submitted the affidavit. In EEOC Appeal No. 2023000458 (Nov. 2, 2023), the Commission rejected Complainant’s contentions . Regarding the EEO Manager’s affidavit, the Commission found that the AJ had broad discretion to determine whether to consider the EEO Manager’s affidavit and did not abuse her discretion in doing so. In reaching this conclusion, the Commission considered Complainant’s contention that using the affidavit from the EEO Man ager to support the Agency’s defensive function constituted a conflict of interest. 2 Complainant alleged that he reported the harassment, fraud, and waste on April 15, 2021. 3 Complainant ’s departure from MSC -K is not part of the instant complaint. However, the Commission rejected that contention because nothing in the record suggested that the EEO Manager or anyone from the EEO Office played any role in defending the Agency against Complainant’s EEO complaint. The Commission also upheld the AJ’s dismissal of claims 1 to 4 because the probative record showed that Complainant’s allegations of reprisal were not based on his prior protected EEO activity but rather his engagement in non -EEO related whistleblower activities. As Complainant failed to prove that he engaged in prior protected EEO activity, the Commission found that the AJ properly dismissed the claims for failure to state a claim. As for claims 5 to 9, the Commission found that Complainant could not prevail on these claims because he failed to show that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for discriminat ion. Complainant subsequently filed the instant request. CONTENTIONS ON REQUEST In requesting reconsideration, Complainant largely raises the same procedural arguments that he raised on appeal . As for the merits of his complaint, Complainant reiterates , in relevant part, that after he raised his concerns with the Agency’s EEO Office on April 15, 2021, management not only retaliated against him as alleged herein, but also coached and encouraged local Korean employees to shun him and write negative statements about him. Without explanation, Complainant argues that since his wife is Korean, it was discriminatory for Korean employees to make statements about his character towards Koreans. The Agency did not respond. Legal Analysis: the Commission, arguing that the AJ erred in dismissing his complaint for failure to state a claim. While Complainant acknowledged that he wrote “ 20210415 Harassment/fraud/wast[e]” in his formal complaint, he emphasized that he clearly stated in his formal complaint that his prior protected EEO activity consisted of complaining about “ favoritism to the Korean National employees and retaliatory actions taken by [his] supervisors against [him]. ” Furthermore, Complainant argued that the inclusion of the EEO Manager’s affidavit not only constituted a conflict of interest but also a discovery violation, as the AJ had not authorized discovery when the Agency submitted the affidavit. In EEOC Appeal No. 2023000458 (Nov. 2, 2023), the Commission rejected Complainant’s contentions . Regarding the EEO Manager’s affidavit, the Commission found that the AJ had broad discretion to determine whether to consider the EEO Manager’s affidavit and did not abuse her discretion in doing so. In reaching this	Bert P .,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2024001068 Appeal No. 2023000458 Hearing No. 480-2022-00155X Agency No. ARDAEGU21JUN01987 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Bert P. v. Department of Veterans Affairs , EEOC Appeal No. 2023000458 (November 2, 2023). ISSUE PRESENTED Whether Complainant’s request for reconsideration of EEOC Appeal No. 2023000458 meets the criteria detailed in 29 C.F.R. § 1614.405(c). BACKGROUND At the time of events giving rise to th is complaint, Complainant worked for the Agency as a WS - 5803- 12 Heavy Mobile Equipment Mechanic Supervisor in the Agency’ s Engine Branch, Major Assembly Division (MAD), U.S. Army Materiel Support Command -Korea (MSC -K), Camp Carroll, South Korea. Report of Investigation (ROI) at 412 -13. Complainant initiated contact with an EEO C ounselor on June 16, 2021. On July 13, 2021, Complainant filed a formal EEO complaint alleging that the Agency discriminated agai nst him based on reprisal (reporting fraud, waste, and abuse to the EEO Office) when: 1. On May 21, 2021, he received a Notice of Proposed Suspension for One Day from his supervisor . 2. On June 16, 2021, he alleged that the Division Chief and the Deputy Director for Maintenance published an unidentified malicious statement against him with the intent to hurt him professionally . 3. On June 29, 2021, the Deputy Director for Maintenance denied his request to attend a Mobilization Deployment Planning Course . 4. He further alleged ongoing harassment because he previously reported various acts of fraud, waste, and abuse in his workplace to the U.S. Army Garrison Daegu EEO Office, which resulted in a 15- 6 Command Investigation being initiated. Complainant subsequently amended his EEO complaint, alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 5. On July 6, 2021, he alleged that he was removed from his position as the Engine Branch Chief and rea ssigned to a position as the Tactical Wheeled Vehicle Branch Chief. 6. For June 9, 2021, he alleged that he was forced to accept 1.5 hours of compensatory time off in place of the overtime he requested. 7. On or about September 1, 2021, he alleged that his com mand attempted to reassign him to a nonexistent position within the 19th Expeditionary Sustainment Command (ESC) . 8. On October 14, 2021, he received a written counseling from the Deputy Director for Maintenance for “Failure to Follow Proper Procedures” . 9. On October 14, 2021, he received the decision letter on his proposed one -day suspension with no pay, directing him not to report to work on October 20, 2021. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, the Agency filed a m otion to dismiss, arguing that Complainant ’s comp laint failed to state a claim because he was alleging reprisal for reporting fraud, waste, and abuse and not reprisal for protected EEO activity. Specifically , the Agency argued that Complainant failed to demonstrate that he was subjected to reprisal for protected EEO activity and emphasized that in his formal EEO complaint, Complainant clearly indicated that he was alleging reprisal based on “20210415 Harassment/fraud/wast[e].”2 In support of its motion, the Agency provided an affidavit from the EEO Manager who interacted with Complainant on April 15, 2021, and determined that Complainant’s allegations were not EEO related. Complainant responded to the Agency’ s Motion to Dismiss , objecting to the inclusion of the affidavit, as he believed that it constituted a conflict of interest given the EEO Manager’s neutral role in the EEO process. He also argued that his EEO complaint stated a n EEO claim because he reported his allegations of fraud, waste, and abuse to the EEO Office. According to Complainant , as a result of reporting these allegations, he was subjected to harassment that was unwelcome and was so severe that he left MSC -K.3 On August 1, 2022, the AJ issued an order, rejecting, in relevant part, Complainant’s objection to the EEO Manager’s aff idavit. The AJ ultimately issued a decision without a heari ng in favor of the Agency. Regarding claims 1 to 4, the AJ found that Complainant’s allegations of reprisal for re porting fraud, waste, and abuse , constituted whistleblower activity and failed to state an EEO claim. As for claims 5 to 9, the AJ found that even if Complainant’s erroneous filing with the EEO Office constituted protected EEO activity, the record was devoid of any evidence that that any of the actions alleged violated Title VII or any other EEO law. Based on the foregoing, the AJ found that a decision without a hearing in favor of the Agency was warranted. The Agency subsequently issued a final order adopting the AJ ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant then appealed the Agency’s final order to the Commission, arguing that the AJ erred in dismissing his complaint for failure to state a claim. While Complainant acknowledged that he wrote “ 20210415 Harassment/fraud/wast[e]” in his formal complaint, he emphasized that he clearly stated in his formal complaint that his prior protected EEO activity consisted of complaining about “ favoritism to the Korean National employees and retaliatory actions taken by [his] supervisors against [him]. ” Furthermore, Complainant argued that the inclusion of the EEO Manager’s affidavit not only constituted a conflict of interest but also a discovery violation, as the AJ had not authorized discovery when the Agency submitted the affidavit. In EEOC Appeal No. 2023000458 (Nov. 2, 2023), the Commission rejected Complainant’s contentions . Regarding the EEO Manager’s affidavit, the Commission found that the AJ had broad discretion to determine whether to consider the EEO Manager’s affidavit and did not abuse her discretion in doing so. In reaching this conclusion, the Commission considered Complainant’s contention that using the affidavit from the EEO Man ager to support the Agency’s defensive function constituted a conflict of interest. 2 Complainant alleged that he reported the harassment, fraud, and waste on April 15, 2021. 3 Complainant ’s departure from MSC -K is not part of the instant complaint. However, the Commission rejected that contention because nothing in the record suggested that the EEO Manager or anyone from the EEO Office played any role in defending the Agency against Complainant’s EEO complaint. The Commission also upheld the AJ’s dismissal of claims 1 to 4 because the probative record showed that Complainant’s allegations of reprisal were not based on his prior protected EEO activity but rather his engagement in non -EEO related whistleblower activities. As Complainant failed to prove that he engaged in prior protected EEO activity, the Commission found that the AJ properly dismissed the claims for failure to state a claim. As for claims 5 to 9, the Commission found that Complainant could not prevail on these claims because he failed to show that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for discriminat ion. Complainant subsequently filed the instant request. CONTENTIONS ON REQUEST In requesting reconsideration, Complainant largely raises the same procedural arguments that he raised on appeal . As for the merits of his complaint, Complainant reiterates , in relevant part, that after he raised his concerns with the Agency’s EEO Office on April 15, 2021, management not only retaliated against him as alleged herein, but also coached and encouraged local Korean employees to shun him and write negative statements about him. Without explanation, Complainant argues that since his wife is Korean, it was discriminatory for Korean employees to make statements about his character towards Koreans. The Agency did not respond. ANALYSIS We have reviewed the various arguments raised by Complainant in the instant request for reconsideration. However, we can find no basis to disturb the Commission’s prior de cision, as Complainant largely presents arguments that were previously raised and considered or could have been raised during the original appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opport unity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric ., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the a ppellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. 4 In his request, Complainant raises additional incidents of discrimination. However, we decline to address these claims, as we have long held that it is inappropriate for a complainant to raise new claims for the first time in a request for reconsideration. See Juarez v. U.S. Postal Serv., EEOC Request No. 0520110691 (Feb. 24, 2012) . Complainant has not done so here. Thus, we conclude that Complainant has not presented any persuasive evidence to support reconsideration of the Commission’s decision. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2023000458 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0124) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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 name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their 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 wor k. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action b ut 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 re quest 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 May 16, 2024 Date	[ "Bert P. v. Department of Veterans Affairs , EEOC Appeal No. 2023000458 (November 2, 2023)", "Lopez v. Dep’t of Agric ., EEOC Request No. 0520070736 (Aug. 20, 2007)", "Juarez v. U.S. Postal Serv., EEOC Request No. 0520110691 (Feb. 24, 2012)", "29 C.F.R. § 1614.405(c)" ]	[ -0.12672819197177887, 0.05972430482506752, 0.034309886395931244, -0.024942174553871155, 0.010336259379982948, 0.013446471653878689, 0.04161013662815094, 0.04024768993258476, -0.023997439071536064, 0.06397213041782379, 0.0561039112508297, -0.02781739830970764, -0.0072330269031226635, -0.011...
25	https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2023001177.pdf	2023001177.pdf	PDF	application/pdf	16,001	Cleo Q .,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency.	November 8, 2022	Appeal Number: 2023001177 Background: During the period at issue, Complainant worked a s an IT Specialist as part of the Agency’s Palace Acquire (PAQ ) Intern Program at the Agency’s Joint Base San Antonio- Lackland facility in Texas. On June 30, 2022, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On November 7, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Judeo -Christian) . In its November 8, 2022 final decision, the Agency determined that the formal complaint was comp rised of the following claims: Was Complainant discriminated a gainst based on religion [by named Agency officials] when: a. On December 6, 2021, [a named Agency official, A1] sent Complainant home on AWOL for adhering to [his] religious principles and refus ing to take a COVID -19 screen test . b. On December 17, 2021, [A 1] texted Complainant “just to recap, since you are not willing to test; you have been AWOL since December 6, 2021.” c. On December 21, 2021, when [Complainant asked] [A1] for status on Religious E xemption, [A1 stated] it has been put on hold. d. On March 3, 2022 [another named Agency official, A2] denied Complainant’s request to telework for completion of duties, stating he could not remote work since Complainant was outside of JBSA area. e. On April 6 , 2022, [A2] denied Complainant’s request to rotate to anothe r base for PAQ OJT and directed Complainant to coordinate with PAQ supervisor in the unit. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned tha t Complainant’s EEO contact on June 30, 2022 occurred more than 45 days after the alleged discriminatory incidents set forth in (a) -(e). The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision and provides various arguments as to why his EEO contact should be deemed timely. Complainant asserts that his supervisor notified him on February 15, 2022 that he was not authorized to use his government laptop and thus he had no access to human resource personnel. Complainant further asserts that he was or dered to return to work on March 28, 2022, and it was not until this time that he began asking co- workers for advice and that they referenced the EEO process . Complainant asserts that he met with an EEO Counsel or on April 21, 2022, who informed him that he did not have a valid claim because the first date of the incident was December 6, 2021, which exceeded 45 days. Complainant states that the last day of the adverse action was his return to work on March 28, 2022, and thus his EEO contact on April 21, 2022 was timely. Finally, Complainant asserts that he received a termination letter on May 19, 2022, for an incident that took place on March 3, 2022 while h e was on AWOL. 2 Complainant stated that an Agency of ficial “ dismissed ” the termination. 2 The record does not contain a copy of the termination letter. According to the EEO Counse lor’s Report, an Agency official stated that Complainant resigned effective September 16, 2022, with no reason provided. EEO C ounselor Report at 5. Complainant states that he initiated EEO contact within 45 days of receiving the termination letter. In response, the Agency states that Complainant failed to artic ulate why it was necessary for him to have his government laptop to initiate EEO contact. Specifically, the Agency stated “by his own admission, [Complainant] was able to request telework from PAQ management during the window his government laptop was unavailable to him…he proffers no reason he could not hav e requested information to contact [EEO] from his managers.” Regarding Complainant’s assertion that upon his return to work, he began researching his options and his co- workers referred him to EEO, the Agency, in its response brief, state s “Complainant did not learn about EEO processes for the first time after returning to work in 2022. When he in -processed at JSBA, he underwent required training for new employees, which included EEO policies and timelines. ” Regarding Complainant’s assertion that he initiated EEO contact on April 21, 2022, the Agency states that Complainant did not exhibit the intent to begin the EEO process on this date because he signed a document setting forth that he did not wish to proceed with pre -complaint processing. Finally, regarding Complainant’s assertion that he initiated EEO contact within 45 days of receiving a termination letter, the Agency states that Complainant did not raise the issue of the termination letter during the informal EEO stage or in his formal complaint. Legal Analysis: 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 fort y-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 fort y-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 also 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 properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Complainant did not initiate EEO Counselor contact until June 30, 2022, outside of the applicable time limit for incidents (a) -(e). While Complainant asserts that he did not have his access to his government laptop from February 15, 2022, until his return to work on March 28, 2022, we concur with the Agency that Complainant does not articulat e why he needed his government computer to contact the Agency’s EEO Office. T he record reflects that he had contact with other Agency officials during his time on AWOL. We are also not persuaded by Complainant’s assertion that it was only upon his return to the office on March 28, 2022 that he started researching this situation and was informed by co-workers to contact EEO. The record contains a declaration under penalty of perjury from his supervisor. Therein, his supervisor asserted that Complainant was onboarded as a summer hire in the May 2019, and returned as a full -time employee in the summer of 2020. The supervisor assert ed that Complainant, as a new hire, underwent Newcomers Equal Employment Opportunity Training which discusses the Agency’s policy against discrimination, including the 45-day requirement for EEO counselor contact. The supervisor further stated that EEO posters are displayed on the main bulletin board in the facility advising employees of the timelin es. Based on the foregoing, we find that Complainant should have reasonably suspected discrimination at the time of the alleged incidents and was aware of the 45 -day time limit and the process for initiating EEO contact. We are also not persuaded by Complainant ’s assertion that he initiated EEO contact on April 21, 2022, and thus his EEO contact should be deemed timely. The Commission has held that, in order to establish EEO contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Serv. , EEOC Appeal No. 05950933 (July 8, 1996). We concur with the Agency that Complainant did not exhibit an intent to begin the EEO process on these matters during his April 21, 2022 meeting with an EEO Counselor. Complainant signed the following document on April 21, 2022: I certify that I was counseled on this date and do not wish to proceed with pre - complaint processing…It was also explained to me that if I do not wish to provide an act or personnel action believed to be discriminatory, the 45 day time frame for raising the matter to the attention of an EEO Counselor would not be waived and any allegations presented at a later date would be considered a new contact date…” Based on the foregoing, we find that Complainant’s did not exhibit an intent to begin the EEO process on these matters on April 21, 2022, and thus he did not initiate EEO contact until June 30, 2022. Finally, regarding Complainant’s assertion that he initiated EEO con tact within 45 days of receiving a termination letter on May 19, 2022, we concur with the Agency that Complainant did not raise this issue in pre-complaint counseling or his formal complaint. The record reflects that Complainant did not raise the issue of the termination letter in his formal complaint. In addition, in an Intake Packet dated June 30, 2022, Complainant did not raise the issue of his termination letter (Complainant checked boxes for “duty hours”, “religious accom modation”, “telework”, “time and attendance”, and “training,” but did not check the box for “termination” ), 3 In addition, a review of the EEO Counselor’s Report reflects that Complainant did not raise the issue of the termination letter during EEO Couns eling. EEO Counselor’s Report at 3, Section D. We will not accept new claims for the first time on appeal. If Complainant wishes to pursue this matter through the EEO process, he should contact an EEO Counselor. Based on the foregoing, we find that Complainant has not presented suf ficient justification to extend the applicable time limit.	Cleo Q .,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2023001177 Agency No. 8Z0J2200644 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 8, 2022, dismissing a formal complaint alleging 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 worked a s an IT Specialist as part of the Agency’s Palace Acquire (PAQ ) Intern Program at the Agency’s Joint Base San Antonio- Lackland facility in Texas. On June 30, 2022, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On November 7, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Judeo -Christian) . In its November 8, 2022 final decision, the Agency determined that the formal complaint was comp rised of the following claims: Was Complainant discriminated a gainst based on religion [by named Agency officials] when: a. On December 6, 2021, [a named Agency official, A1] sent Complainant home on AWOL for adhering to [his] religious principles and refus ing to take a COVID -19 screen test . b. On December 17, 2021, [A 1] texted Complainant “just to recap, since you are not willing to test; you have been AWOL since December 6, 2021.” c. On December 21, 2021, when [Complainant asked] [A1] for status on Religious E xemption, [A1 stated] it has been put on hold. d. On March 3, 2022 [another named Agency official, A2] denied Complainant’s request to telework for completion of duties, stating he could not remote work since Complainant was outside of JBSA area. e. On April 6 , 2022, [A2] denied Complainant’s request to rotate to anothe r base for PAQ OJT and directed Complainant to coordinate with PAQ supervisor in the unit. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned tha t Complainant’s EEO contact on June 30, 2022 occurred more than 45 days after the alleged discriminatory incidents set forth in (a) -(e). The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision and provides various arguments as to why his EEO contact should be deemed timely. Complainant asserts that his supervisor notified him on February 15, 2022 that he was not authorized to use his government laptop and thus he had no access to human resource personnel. Complainant further asserts that he was or dered to return to work on March 28, 2022, and it was not until this time that he began asking co- workers for advice and that they referenced the EEO process . Complainant asserts that he met with an EEO Counsel or on April 21, 2022, who informed him that he did not have a valid claim because the first date of the incident was December 6, 2021, which exceeded 45 days. Complainant states that the last day of the adverse action was his return to work on March 28, 2022, and thus his EEO contact on April 21, 2022 was timely. Finally, Complainant asserts that he received a termination letter on May 19, 2022, for an incident that took place on March 3, 2022 while h e was on AWOL. 2 Complainant stated that an Agency of ficial “ dismissed ” the termination. 2 The record does not contain a copy of the termination letter. According to the EEO Counse lor’s Report, an Agency official stated that Complainant resigned effective September 16, 2022, with no reason provided. EEO C ounselor Report at 5. Complainant states that he initiated EEO contact within 45 days of receiving the termination letter. In response, the Agency states that Complainant failed to artic ulate why it was necessary for him to have his government laptop to initiate EEO contact. Specifically, the Agency stated “by his own admission, [Complainant] was able to request telework from PAQ management during the window his government laptop was unavailable to him…he proffers no reason he could not hav e requested information to contact [EEO] from his managers.” Regarding Complainant’s assertion that upon his return to work, he began researching his options and his co- workers referred him to EEO, the Agency, in its response brief, state s “Complainant did not learn about EEO processes for the first time after returning to work in 2022. When he in -processed at JSBA, he underwent required training for new employees, which included EEO policies and timelines. ” Regarding Complainant’s assertion that he initiated EEO contact on April 21, 2022, the Agency states that Complainant did not exhibit the intent to begin the EEO process on this date because he signed a document setting forth that he did not wish to proceed with pre -complaint processing. Finally, regarding Complainant’s assertion that he initiated EEO contact within 45 days of receiving a termination letter, the Agency states that Complainant did not raise the issue of the termination letter during the informal EEO stage or in his formal 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 fort y-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 fort y-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 also 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 properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Complainant did not initiate EEO Counselor contact until June 30, 2022, outside of the applicable time limit for incidents (a) -(e). While Complainant asserts that he did not have his access to his government laptop from February 15, 2022, until his return to work on March 28, 2022, we concur with the Agency that Complainant does not articulat e why he needed his government computer to contact the Agency’s EEO Office. T he record reflects that he had contact with other Agency officials during his time on AWOL. We are also not persuaded by Complainant’s assertion that it was only upon his return to the office on March 28, 2022 that he started researching this situation and was informed by co-workers to contact EEO. The record contains a declaration under penalty of perjury from his supervisor. Therein, his supervisor asserted that Complainant was onboarded as a summer hire in the May 2019, and returned as a full -time employee in the summer of 2020. The supervisor assert ed that Complainant, as a new hire, underwent Newcomers Equal Employment Opportunity Training which discusses the Agency’s policy against discrimination, including the 45-day requirement for EEO counselor contact. The supervisor further stated that EEO posters are displayed on the main bulletin board in the facility advising employees of the timelin es. Based on the foregoing, we find that Complainant should have reasonably suspected discrimination at the time of the alleged incidents and was aware of the 45 -day time limit and the process for initiating EEO contact. We are also not persuaded by Complainant ’s assertion that he initiated EEO contact on April 21, 2022, and thus his EEO contact should be deemed timely. The Commission has held that, in order to establish EEO contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Serv. , EEOC Appeal No. 05950933 (July 8, 1996). We concur with the Agency that Complainant did not exhibit an intent to begin the EEO process on these matters during his April 21, 2022 meeting with an EEO Counselor. Complainant signed the following document on April 21, 2022: I certify that I was counseled on this date and do not wish to proceed with pre - complaint processing…It was also explained to me that if I do not wish to provide an act or personnel action believed to be discriminatory, the 45 day time frame for raising the matter to the attention of an EEO Counselor would not be waived and any allegations presented at a later date would be considered a new contact date…” Based on the foregoing, we find that Complainant’s did not exhibit an intent to begin the EEO process on these matters on April 21, 2022, and thus he did not initiate EEO contact until June 30, 2022. Finally, regarding Complainant’s assertion that he initiated EEO con tact within 45 days of receiving a termination letter on May 19, 2022, we concur with the Agency that Complainant did not raise this issue in pre-complaint counseling or his formal complaint. The record reflects that Complainant did not raise the issue of the termination letter in his formal complaint. In addition, in an Intake Packet dated June 30, 2022, Complainant did not raise the issue of his termination letter (Complainant checked boxes for “duty hours”, “religious accom modation”, “telework”, “time and attendance”, and “training,” but did not check the box for “termination” ), 3 In addition, a review of the EEO Counselor’s Report reflects that Complainant did not raise the issue of the termination letter during EEO Couns eling. EEO Counselor’s Report at 3, Section D. We will not accept new claims for the first time on appeal. If Complainant wishes to pursue this matter through the EEO process, he should contact an EEO Counselor. Based on the foregoing, we find that Complainant has not presented suf ficient justification to extend the applicable time limit. Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appe llate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be fil ed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of anoth er party’s request for reconsideration within 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). Compla inant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 3 While Complainant’s June 30, 2022 EEO contact occurred after receiving the termination letter on May 19, 2022, Complainant did not allege this as a discriminatory incident during the pre - complaint process. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -d ay time period will result in dismissa l of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 appropr iate United States Distric t Court within ninety (90) calendar days from the date that you receive this decision. 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 hi s 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 mus t 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 ti me limits for filing a c ivil 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 Operat ions March 7, 2023 Date	[ "Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)", "Allen v. United States Postal Serv., EEOC Appeal No. 05950933 (July 8, 1996)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e...	[ -0.04257689788937569, 0.09115038067102432, -0.008836686611175537, -0.02274225652217865, -0.016850559040904045, 0.03559194877743721, 0.022318614646792412, -0.023924868553876877, 0.02251141518354416, 0.031063714995980263, 0.041328150779008865, -0.017433810979127884, -0.019885635003447533, -0...
26	https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000558.pdf	2022000558.pdf	PDF	application/pdf	17,000	Jeramy R .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.	November 2, 2021	Appeal Number: 2022000558 Background: At the time of events giving rise to this complaint, Complainant was employed by the Agency as the Assistant Chief of Volu ntary Services, GS -12, f or the South Texas Veterans Health Care System , at the Audie Murphy V A Hospital in San Antonio, Texas. On September 16, 2021, Complainant filed a Formal EEO Complaint allegin g discrimination by the Agency on the bases of race ( Black ), disability , and re prisal for prior protected EEO activity when , on January 12, 2021, he received written notification that he was not selected for the position of Chief of Voluntary Service , GS -13, Vacancy A nnouncement No. CAZM 1097978221DMK (“ VS Chief ”). On January 12, 2021, Complainant filed a Freedom of Information Act (“FOIA”) request pertaining to the selection process for the VS Chief position , including the qualifications, interview notes and interview scores for the selectee, and the alternate candidate (Complainant) . The FOIA request also sought the race, gender , and age of the selectee and the mem bers of the selection panel and extensive information on the gender, race, and age make -up of numerous positions within the servi ce. On January 19, 2021, Complainan t updat ed his request to also include information regarding the selectee ’s disability status. On March 25, 2021, Complainant received a respons e, which contained blank pages and appeared incomplete, as it lacked the requested demograph ic data, and eleme nts of the VS Chief selection process, including any criteria or guidance given to the selection panel members . Complainant appealed, with the Agency ’s Office of General Counsel (“OGC”) . On May 6, 2021, the OGC issued a final decision partially granting Compla inant ’s FOIA appeal , while still denying a significant portion of his request . Compla inant states that decision demonstrated the Agency’ s lack of transparency regarding the selection process for the VS Chief position and caused him to suspect that his nons election was due to discrimination. Complainant initiated the instant EEO complaint on June 1, 2021. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. Legal Analysis: the Commission has consistently held that that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv. , EEOC Appeal No. 01992093 (Nov. 29, 2000) . This holds true for complainants who delay contacting an EEO counselor until they have gat hered supporting ev idence through the FOI A system. Valencia L. v. R.R. Retirement B d., EEOC Appe al No. 2019001765 (Sept. 18, 2019) , Mitchell K. v. Dep’t of the Na vy, EEOC Appeal No. 2019002360 (Apr. 30, 2019) ( noting that the complainant initiated the FOIA request because he reasona bly suspected discrimination ). Complain ant’s bald assertion s that he relied on HR ’s erroneous advice to his det riment , and that HR and other Agency officia ls failed to direct his complaint to th e EEO process, are insufficient, on their own, to give rise to provide adequate justification to excuse Complainant ’s untimely EEO co ntact. See Tianna M. v. Dep ’t of Veterans Affairs , EEOC Appeal No. 2021004600 (Jan. 11, 2022) citing Bixler v. Dep ’t of the Air Force , EEOC Appeal No. 01941332 (March 25, 1994) (the mere assertion by appellant that an EEO Co unselor told him that he could not file an EEO complaint is not enough to support such a contention) . Additionally, C omplainant does not dispute that he was placed on notice of the EEO time frames through trainin g and agency postings located throughout the Medical Center. Ultimately, nothing in the record indicates that the Agency engaged in misconduct by intentionally inducing Complainant’s untimely EEO contact . The record reveals that Complainant initially expe rienced extreme confusion regarding initiati ng his EEO complaint . Once Complainant wa s in contact with the EEO Counselor, email correspondence reflects that the EEO C ounselor was re sponsive and communicative. Notably, on October 6, 2021, the EEO Case Manager assigned to make a determination on Compl ainant ’s complaint emailed him with an additional opportunity for clarification regarding the delay ed EEO contact and his reprisal allegation before issuing the Agency’ s decision . An extension of the limitat ion period to initiate EEO contact is not warran ted. Additional Allegations of Discrimination & Reprisal On appeal, Complainant asserts that the Agency failed fully address his complaint, including his allegations of reprisal for his EEO activity associated with the instant complaint. The allegations include, but are not limited to, an ongoing hos tile work environment perpetuated by the selecting official, with retaliatory and dis criminatory actions continuing through September 2021. Under Commission pol icy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv. , EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionall y, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army , EEOC Request No. 05970584 (Oct. 8, 1998). Having thoroughly review ed the re cord, the Commission concludes that the only claim that Complainant raised with the EEO Counselor for the instant complaint was his January 12, 2021 nonselection for the position of VS Chief. Complainant ’s additional reprisal allegations are included in a document entitled “Official Complaint,” which he submitted with his Formal EEO Complaint after the	Jeramy R .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000558 Agency No. 200306712021104677 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ( “EEOC” or “Commission ”) from the Agency's November 2, 2021 dismissal of his complaint alleging unlawful employment discriminat ion 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency as the Assistant Chief of Volu ntary Services, GS -12, f or the South Texas Veterans Health Care System , at the Audie Murphy V A Hospital in San Antonio, Texas. On September 16, 2021, Complainant filed a Formal EEO Complaint allegin g discrimination by the Agency on the bases of race ( Black ), disability , and re prisal for prior protected EEO activity when , on January 12, 2021, he received written notification that he was not selected for the position of Chief of Voluntary Service , GS -13, Vacancy A nnouncement No. CAZM 1097978221DMK (“ VS Chief ”). On January 12, 2021, Complainant filed a Freedom of Information Act (“FOIA”) request pertaining to the selection process for the VS Chief position , including the qualifications, interview notes and interview scores for the selectee, and the alternate candidate (Complainant) . The FOIA request also sought the race, gender , and age of the selectee and the mem bers of the selection panel and extensive information on the gender, race, and age make -up of numerous positions within the servi ce. On January 19, 2021, Complainan t updat ed his request to also include information regarding the selectee ’s disability status. On March 25, 2021, Complainant received a respons e, which contained blank pages and appeared incomplete, as it lacked the requested demograph ic data, and eleme nts of the VS Chief selection process, including any criteria or guidance given to the selection panel members . Complainant appealed, with the Agency ’s Office of General Counsel (“OGC”) . On May 6, 2021, the OGC issued a final decision partially granting Compla inant ’s FOIA appeal , while still denying a significant portion of his request . Compla inant states that decision demonstrated the Agency’ s lack of transparency regarding the selection process for the VS Chief position and caused him to suspect that his nons election was due to discrimination. Complainant initiated the instant EEO complaint on June 1, 2021. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2), provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits in §1614.105. Under 29 C.F.R. § 1614.105(a)(1), complaints of discrim ination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action (e.g. nonselection) , within 45 days of the effective date of the action. The Commiss ion has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 -day limitation period is triggered. See Howar d v. Dep't of the Navy, EEOC Request No. 05970852 ( Feb. 11, 1999). T hus, the ti me limitation is not triggered until a c omplainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent . Com plainant v. United States Postal Serv ., EEOC Appeal No. 0120120499 ( Apr. 19, 2012) emphasi s added . 2 Although the Agency identifies July 13, 2021 , as the date of initial contact, Complainant provides a certified mail receipt establishing that he mistakenly contacted the EEO Office within the Agency ’s Central Office in Washington, DC , on June 1, 2021, which, along wit h his subsequent efforts to further this complaint, is sufficient evidence of EEO contact. See Cristantiello v. Dep ’t of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000) (EEO counselor contact is satisfied when a complainant contact s an agen cy official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO proces s). Here, the alleged discriminatory event occurred on January 12, 2021, yet Complainant did not initiate EEO contact until June 1, 2021, well past the 45- day limitation period. Reasonable Suspicion On appeal, Complainant asserts that his compla int is timely because he did not reason ably suspect discrimination until May 6, 2021. However, we conclude that reason able suspicion of discriminatio n existed no later than January 12, 2021. Complainant had already been verbally notified of the selectee ’s identi ty, and, by virtue of his position, Com plainant w ould have interacted professionally with the selectee long before May 6, 2021. See Swanigan v. Unite d States Postal Serv. , EEOC Appeal No. 0120033469 (Mar. 31, 2004) (where the alleged discriminatory ev ent is nonselection, reasonable suspicion of discrimination is often not triggered until the complainant learns the identi ty of the selectee ) citation omitted. On appeal, and in hi s formal EEO complaint, Complainant alleges that the selectin g official , who he worked under for years, exhibited a “history of showing bias toward persons in my prote cted class ” and provides examples predat ing his nonselection , such as a “very noticeable ” dearth of non- white employees holding positions higher than GS -9 within in the selecting official ’s unit. In this context, Complainant ’s January 12 and 19, 2021 FOIA requests , given their content, essentially confirm that he suspected discrimination , at the time of his nonselection. While it may be relevant to his claim, the O GC’s May 6, 2021 FOIA Decision was no t necessary to trigger reasonable suspici on of discrimination . Complainant ’s claim is untimely pu rsuant to 29 C.F.R. § 1614.107(a)(2) . Allegation of Being Misled Complainant also argues that an extension of the 45-day limitation period is warranted here because the Agency intentionally misled him. Specifically, Complainant reasons that he missed the deadline to contact an EEO counselor because he relied on the Chief of Human Resources (“HR”), who advised him to gathe r all of the facts before pursuing an i nvestigation . We first note that the Commission has consistently held that that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv. , EEOC Appeal No. 01992093 (Nov. 29, 2000) . This holds true for complainants who delay contacting an EEO counselor until they have gat hered supporting ev idence through the FOI A system. Valencia L. v. R.R. Retirement B d., EEOC Appe al No. 2019001765 (Sept. 18, 2019) , Mitchell K. v. Dep’t of the Na vy, EEOC Appeal No. 2019002360 (Apr. 30, 2019) ( noting that the complainant initiated the FOIA request because he reasona bly suspected discrimination ). Complain ant’s bald assertion s that he relied on HR ’s erroneous advice to his det riment , and that HR and other Agency officia ls failed to direct his complaint to th e EEO process, are insufficient, on their own, to give rise to provide adequate justification to excuse Complainant ’s untimely EEO co ntact. See Tianna M. v. Dep ’t of Veterans Affairs , EEOC Appeal No. 2021004600 (Jan. 11, 2022) citing Bixler v. Dep ’t of the Air Force , EEOC Appeal No. 01941332 (March 25, 1994) (the mere assertion by appellant that an EEO Co unselor told him that he could not file an EEO complaint is not enough to support such a contention) . Additionally, C omplainant does not dispute that he was placed on notice of the EEO time frames through trainin g and agency postings located throughout the Medical Center. Ultimately, nothing in the record indicates that the Agency engaged in misconduct by intentionally inducing Complainant’s untimely EEO contact . The record reveals that Complainant initially expe rienced extreme confusion regarding initiati ng his EEO complaint . Once Complainant wa s in contact with the EEO Counselor, email correspondence reflects that the EEO C ounselor was re sponsive and communicative. Notably, on October 6, 2021, the EEO Case Manager assigned to make a determination on Compl ainant ’s complaint emailed him with an additional opportunity for clarification regarding the delay ed EEO contact and his reprisal allegation before issuing the Agency’ s decision . An extension of the limitat ion period to initiate EEO contact is not warran ted. Additional Allegations of Discrimination & Reprisal On appeal, Complainant asserts that the Agency failed fully address his complaint, including his allegations of reprisal for his EEO activity associated with the instant complaint. The allegations include, but are not limited to, an ongoing hos tile work environment perpetuated by the selecting official, with retaliatory and dis criminatory actions continuing through September 2021. Under Commission pol icy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv. , EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionall y, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army , EEOC Request No. 05970584 (Oct. 8, 1998). Having thoroughly review ed the re cord, the Commission concludes that the only claim that Complainant raised with the EEO Counselor for the instant complaint was his January 12, 2021 nonselection for the position of VS Chief. Complainant ’s additional reprisal allegations are included in a document entitled “Official Complaint,” which he submitted with his Formal EEO Complaint after the conclusion of informal EEO Counseling . As these claims were not first raised with an EEO Counselor, they cannot be reviewed in this decision . 3 The Agency properly notified Complainant that the only claim raised during informal EEO Counseling for this c omplaint was th e January 12, 2021 nonselection. The EEO Counselor ’s Report, the VA Form 4939 ( the Agency’s Formal EEO Complaint Form) , and the Noti ce of Right to File ( “NRTF ”) all explain that the claims included on the Formal EEO Complaint must first be raised with an EEO Counselor. A September 16, 2021 email conversation between Complainant and his as signed EEO Counselor provides written confirmation from Complainant To the extent that he has not already done so,4 if Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then he must cont act an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv. , EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED . STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this a ppellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to e stablish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellat e decision will have a substantial impact o n the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If t he party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from rece ipt of another pa rty’s request for reconsideration within w hich 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). Complainan t should submit his or her request for reco nsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeo c.gov/Portal/Login.aspx Alternatively, Com plainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or b y certified mail addressed to 131 M Street, NE, Washington, DC 20507. that he and the EEO Counselor verbally discussed the conclusion of the informa l counselin g stage, and that Complainant received and read the NRTF and the VA Form 4939. 4 Complainant discussed some of his new reprisal allegations in response to the EEO Case Manager ’s October 6, 2021 email . In the absence of a legible postmark, a compl ainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital for mat via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in o pposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration a s untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will conside r requests for reconsideration filed after t he 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 C ourt within ninety (90) calendar days from the date that you receive this decision. If you file a civi l 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 t o reconsider and also file a civil action, f iling 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 pro ceed 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 cost s 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 ti me limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signat ure Carlton M. Hadden, Director Office of Federal Operation s March 21, 2022 Date	[ "Cristantiello v. Dep ’t of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000)", "Swanigan v. Unite d States Postal Serv., EEOC Appeal No. 0120033469 (Mar. 31, 2004)", "EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000)", "Mitchell K. v. Dep’t of the Na vy, EEOC ...	[ -0.07531469315290451, 0.061137061566114426, 0.009994398802518845, -0.009779366664588451, -0.020068837329745293, 0.07745884358882904, -0.005081039387732744, -0.04219161346554756, -0.00745414337143302, -0.00046410333015955985, 0.06050824373960495, -0.009638830088078976, -0.0042141396552324295,...
27	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05a50574.txt	05a50574.txt	TXT	text/plain	9,822	05 . Robert D. Wanat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	January 31, 2005	Appeal Number: 01A50329	Robert D. Wanat v. United States Postal Service 05A50574 04-22-05 . Robert D. Wanat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Request No. 05A50574 Appeal No. 01A50329 Agency No. 1B-065-0022-04 DENIAL Robert D. Wanat (complainant) timely requested reconsideration of the decision in Robert D. Wanat v. United States Postal Service, EEOC Appeal No. 01A50329 (January 31, 2005). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). Complainant filed a complaint alleging that he was discriminated against based on disability when he was not allowed to return to work on crutches, from December 23, 2003 through April 8, 2004, and his absence was charged as FMLA leave. The record indicates that, prior to having foot surgery, on December 23, 2003, complainant was told by management that he would not be allowed on the work room floor using crutches.<1> The agency dismissed complainant's complaint on the grounds that he failed to contact an EEO counselor in an timely manner. According to the agency, complainant did not make contact with the EEO office until July 8, 2004. On that date, the EEO office received two letters from complainant, dated April 16 and May 16, 2004. These letters had been placed in an internal mailbox at complainant's work facility. The mailbox, which had been assigned to the EEO office, was being used by the Diversity Unit. The record indicates that the EEO office, the year before, closed its offices at complainant's work facility and moved to a new location. The Diversity Unit forwarded complainant's letters to the EEO office through the agency's internal mail system, and they were received on July 8, 2004. Complainant, when asked about the timeliness of his EEO contact, indicated that he had never had any need for EEO, and could not read the EEO poster that was displayed at his facility because he was at home.<2> On appeal, complainant indicated that he had no reason to suspect discrimination until March 2, 2004, when the agency informed him that there was no written policy banning the use of crutches on the workroom floor. In his May 16 letter, complainant indicated that, on April 16, 2004, he spoke to a Commission employee from Boston. This employee advised him to immediately contact the EEO office at the agency where he worked. The next day, complainant placed the first letter in the internal mailbox. In that letter, complainant indicated that he felt that there had been an EEO violation. The previous decision found that the agency presented sufficient evidence to show that an EEO poster was prominently displayed on employee bulletin boards on April 8, 2004, the day complainant returned to work. This EEO poster identified the correct address and telephone number for the EEO office. According to the previous decision, complainant, upon his return to work, could have read the poster in order to discover the correct address for contacting a counselor. Therefore, the previous decision affirmed the agency's dismissal of complainant's complaint. In his request for reconsideration, complainant argued, as he did on appeal, that the internal mailbox in which he placed his letters was labeled "EEO." He also indicated that the EEO office was listed on the building directory of his facility. The agency opposed complainant's request for reconsideration arguing that he failed to satisfy the criteria for reconsideration set forth at 29 C.F.R. § 1614.405(b). According to the agency, complainant had a reasonable suspicion of discrimination before his December 23, 2003 surgery, and that he had constructive knowledge of the EEO process and its time frames because of the EEO poster at his work facility. Finally, the agency maintained that complainant failed to exercise due diligence by placing his two letters in the internal mailbox. After a careful review of the evidence of record and the arguments submitted by the parties both on appeal and pursuant to complainant's request for reconsideration, we find that the previous decision correctly affirmed the agency's dismissal of complainant's complaint. At the outset, we note that the agency has never disputed complainant's assertion that it maintained a mailbox at his work facility that was labeled EEO. Therefore, although the agency posted notices with the correct information for contacting EEO counselors, we find it reasonable that complainant, in reliance on the agency's actions, would have thought that he could have contacted the EEO office via the internal mailbox that was provided. We also find that, April 17, 2004, the date complainant mailed his first letter to the EEO office should be deemed the date of counselor contact. Notwithstanding these determinations, however, we find that complainant contacted the EEO office in an untimely manner. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.105. 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. According to complainant, he suspected discrimination, on March 2, 2004, when he learned, contrary to what he had been told, that the agency did not have a written policy prohibiting the use of crutches on the work room floor. Therefore, he had 45 days to contact an EEO counselor in a timely manner. Complainant's April 17, 2004 contact was beyond the 45-day limitation period by one day. We find no justification in the record for why complainant did not contact an EEO counselor on or before April 16, 2004. Under the constructive notice rule, complainant is presumed to have had knowledge of the EEO process and its time frames because of the EEO poster that was displayed at his work facility. We also note the fact that complainant returned to the workplace on April 8, 2004; consequently, there was sufficient time for him to have contacted an EEO counselor in a timely manner. After reconsidering the previous decision, and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to deny the request. The decision in Appeal No. 01A50329 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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 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. RIGHT TO REQUEST COUNSEL (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 ____04-22-05______________ Date 1According to complainant, he was not incapacitated and his doctor would have released him to return to work, but for a purported policy of the agency that prevented employees from using crutches or open toed casts on the workroom floor. 2The Commission has previously held that under the constructive notice rule even if an employee has no actual personal knowledge of EEO deadlines, the fact that the agency posted notices is sufficient to trigger his duty to comply with the deadlines. Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990).	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)", "29 C.F.R. § 1614.405(b)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.06430181115865707, 0.061897724866867065, -0.012016990222036839, -0.028860943391919136, -0.034261591732501984, -0.004537563305348158, 0.021537218242883682, 0.0708393082022667, -0.04547344520688057, 0.019029486924409866, -0.014678247272968292, 0.07404795289039612, -0.08528691530227661, 0....
28	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31053.txt	01A31053.txt	TXT	text/plain	12,196	Leonard Stanley v. Department of Justice 01A31053 February 12, 2004 . Leonard Stanley, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.	February 12, 2004	Appeal Number: 01A31053 Case Facts: Complainant filed a timely appeal with this Commission from the agency's final order concerning his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. On December 7, 1999, complainant, a Senior Officer, GS-7, at the agency's Federal Correctional Institution (FCI), Petersburg, Virginia, initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful. On February 14, 2000, complainant filed a formal EEO complaint alleging that the agency discriminated against him on the basis of age (D.O.B. 6/19/49), when on or about August 11, 1999, he learned that he had not been selected for the position of Senior Officer Specialist, GS-8, vacancy announcement 99-PET-22. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On August 2, 2002, the agency filed a Motion for a Decision Without a Hearing, claiming that complainant failed to initiate timely EEO counseling, or in the alternative, moved for summary judgment. On August 7, 2002, the AJ held a pre-hearing teleconference with the agency and complainant. During the teleconference, complainant claimed that following his nonselection, he attempted to contact an EEO Officer at the agency's Washington D.C. office but was unsuccessful. The AJ granted complainant the right to amend his initial response to the agency's Motion for Decision Without a Hearing and address the issue of timeliness in contacting an EEO Counselor. On August 14, 2002, complainant submitted his amended response to the agency's Motion. Therein, complainant argued that he attempted to contact an EEO Counselor at the agency's FCI Petersburg, Virginia, but was unsuccessful. Complainant further argued that on August 25, 1999, he was informed that he should contact the agency's Central Office, but despite attempts to do so, never heard anything from the former EEO Officer. Complainant stated that on December 1, 1999, he again contacted the Central Office and spoke with an EEO Counselor. Complainant further stated that he received a Notice of EEO Complaint Process dated December 9, 1999, from the EEO Counselor. Furthermore, complainant stated that since December 9, 1999, he and the EEO Counselor corresponded by telephone and email. In support of his argument, complainant provided three attachments including: an email dated November 24, 1999, from an EEO Counselor, a copy of his formal complaint and a copy of a letter from a former EEO Counselor acknowledging receipt of his formal complaint. On August 29, 2002, the agency submitted its reply to complainant's amended response to its Motion for Decision Without a Hearing. Therein, the agency stated that it does not dispute complainant's claim that he may have contacted the EEO office on November 24, 1999; however, the agency stated that the November 24, 1999 EEO contact would still be well beyond the forty-five-day limitation period. The agency further argued that besides the November 24, 1999 email, complainant failed to provide any evidence indicating that he attempted to contact an agency representative concerning EEO counseling within 45 days of the nonselection. On September 9, 2002, the Administrative Judge granted the agency's motion to dismiss and issued a decision dismissing the complaint on the grounds of untimely EEO Counselor contact. Specifically, the AJ found that the discriminatory event occurred on August 11, 1999, but that complainant did not seek counseling until December 7, 1999, which is beyond the forty-five-day limitation period. The AJ further noted that a fair reading of the November 24, 1999 email indicates that complainant may have contacted the EEO Office earlier in November 1999; however, the AJ found that the November 1999 EEO contact was still beyond the forty-five-day limitation period. Furthermore, the AJ concluded that complainant knew or should have known that he could have contacted the agency's local Human Resources Manager, the local CEO or Central Office EEO within the forty-five-day limitation period. The AJ also found that complainant does not provide any evidence to show that he was not aware of the requisite time limit to contact an EEO Counselor at the time of the alleged incident. Finally, the AJ stated that since the complaint is dismissed for untimely EEO Counselor contact, he would not make a determination on the agency's alternative grounds for dismissal. The agency implemented the AJ's decision in a final order dated October 30, 2002. It is this decision that is the subject of the instant appeal. On appeal, complainant repeats that he notified a former EEO Officer on or about August 25, 1999, concerning the nonselection. Complainant further contends that the former EEO Officer informed him that she thought an EEO Counselor was assigned to him and that she would get back to him. Complainant contends that he was informed by a co-worker that there was a mix-up of their EEO cases concerning the nonselection. In its response to complainant's appeal, the agency submits a declaration from the former EEO Officer. Therein, the former EEO Officer stated that during the normal course of her duties as an EEO Officer, she maintained a daily calendar of events including telephone inquiries and voice-mail messages. The former EEO Officer further stated that while she is now longer an EEO Officer, she had retained her calendar for the relevant time frame. Furthermore, the former EEO Officer stated that during the week of August 25, 1999, she was out of her office on official government travel and could not have spoken with complainant as alleged. The former EEO Officer also stated that during the time period of August 1, 1999 through October 1999, there were no entries in her calendar denoting telephone calls or voice messages from complainant. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, in light of the affidavit from the former EEO Officer, we find that complainant fails to submit sufficient evidence to show that he initiated EEO Counselor contact in August 1999. Therefore, the Commission determines that complainant's initial EEO Counselor contact occurred on December 7, 1999, more than forty-five days after the notification of the August 11, 1999 nonselection, and complainant fails to present adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation period beyond forty-five days. Even assuming that complainant contacted an EEO Counselor in November 1999, we find that that contact was still beyond the forty-five-day limitation period. Final Decision: Accordingly, the agency's order implementing the AJ's dismissal of the instant complaint was proper and is AFFIRMED.	Leonard Stanley v. Department of Justice 01A31053 February 12, 2004 . Leonard Stanley, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency. Appeal No. 01A31053 Agency No. P-2000-0085 Hearing No. 120-A2-1358X DECISION Complainant filed a timely appeal with this Commission from the agency's final order concerning his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. On December 7, 1999, complainant, a Senior Officer, GS-7, at the agency's Federal Correctional Institution (FCI), Petersburg, Virginia, initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful. On February 14, 2000, complainant filed a formal EEO complaint alleging that the agency discriminated against him on the basis of age (D.O.B. 6/19/49), when on or about August 11, 1999, he learned that he had not been selected for the position of Senior Officer Specialist, GS-8, vacancy announcement 99-PET-22. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On August 2, 2002, the agency filed a Motion for a Decision Without a Hearing, claiming that complainant failed to initiate timely EEO counseling, or in the alternative, moved for summary judgment. On August 7, 2002, the AJ held a pre-hearing teleconference with the agency and complainant. During the teleconference, complainant claimed that following his nonselection, he attempted to contact an EEO Officer at the agency's Washington D.C. office but was unsuccessful. The AJ granted complainant the right to amend his initial response to the agency's Motion for Decision Without a Hearing and address the issue of timeliness in contacting an EEO Counselor. On August 14, 2002, complainant submitted his amended response to the agency's Motion. Therein, complainant argued that he attempted to contact an EEO Counselor at the agency's FCI Petersburg, Virginia, but was unsuccessful. Complainant further argued that on August 25, 1999, he was informed that he should contact the agency's Central Office, but despite attempts to do so, never heard anything from the former EEO Officer. Complainant stated that on December 1, 1999, he again contacted the Central Office and spoke with an EEO Counselor. Complainant further stated that he received a Notice of EEO Complaint Process dated December 9, 1999, from the EEO Counselor. Furthermore, complainant stated that since December 9, 1999, he and the EEO Counselor corresponded by telephone and email. In support of his argument, complainant provided three attachments including: an email dated November 24, 1999, from an EEO Counselor, a copy of his formal complaint and a copy of a letter from a former EEO Counselor acknowledging receipt of his formal complaint. On August 29, 2002, the agency submitted its reply to complainant's amended response to its Motion for Decision Without a Hearing. Therein, the agency stated that it does not dispute complainant's claim that he may have contacted the EEO office on November 24, 1999; however, the agency stated that the November 24, 1999 EEO contact would still be well beyond the forty-five-day limitation period. The agency further argued that besides the November 24, 1999 email, complainant failed to provide any evidence indicating that he attempted to contact an agency representative concerning EEO counseling within 45 days of the nonselection. On September 9, 2002, the Administrative Judge granted the agency's motion to dismiss and issued a decision dismissing the complaint on the grounds of untimely EEO Counselor contact. Specifically, the AJ found that the discriminatory event occurred on August 11, 1999, but that complainant did not seek counseling until December 7, 1999, which is beyond the forty-five-day limitation period. The AJ further noted that a fair reading of the November 24, 1999 email indicates that complainant may have contacted the EEO Office earlier in November 1999; however, the AJ found that the November 1999 EEO contact was still beyond the forty-five-day limitation period. Furthermore, the AJ concluded that complainant knew or should have known that he could have contacted the agency's local Human Resources Manager, the local CEO or Central Office EEO within the forty-five-day limitation period. The AJ also found that complainant does not provide any evidence to show that he was not aware of the requisite time limit to contact an EEO Counselor at the time of the alleged incident. Finally, the AJ stated that since the complaint is dismissed for untimely EEO Counselor contact, he would not make a determination on the agency's alternative grounds for dismissal. The agency implemented the AJ's decision in a final order dated October 30, 2002. It is this decision that is the subject of the instant appeal. On appeal, complainant repeats that he notified a former EEO Officer on or about August 25, 1999, concerning the nonselection. Complainant further contends that the former EEO Officer informed him that she thought an EEO Counselor was assigned to him and that she would get back to him. Complainant contends that he was informed by a co-worker that there was a mix-up of their EEO cases concerning the nonselection. In its response to complainant's appeal, the agency submits a declaration from the former EEO Officer. Therein, the former EEO Officer stated that during the normal course of her duties as an EEO Officer, she maintained a daily calendar of events including telephone inquiries and voice-mail messages. The former EEO Officer further stated that while she is now longer an EEO Officer, she had retained her calendar for the relevant time frame. Furthermore, the former EEO Officer stated that during the week of August 25, 1999, she was out of her office on official government travel and could not have spoken with complainant as alleged. The former EEO Officer also stated that during the time period of August 1, 1999 through October 1999, there were no entries in her calendar denoting telephone calls or voice messages from complainant. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, in light of the affidavit from the former EEO Officer, we find that complainant fails to submit sufficient evidence to show that he initiated EEO Counselor contact in August 1999. Therefore, the Commission determines that complainant's initial EEO Counselor contact occurred on December 7, 1999, more than forty-five days after the notification of the August 11, 1999 nonselection, and complainant fails to present adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation period beyond forty-five days. Even assuming that complainant contacted an EEO Counselor in November 1999, we find that that contact was still beyond the forty-five-day limitation period. Accordingly, the agency's order implementing the AJ's dismissal of the instant complaint was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 February 12, 2004 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "29 U.S.C. § 621", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.07443196326494217, 0.07477029412984848, 0.0009978453163057566, 0.045396119356155396, 0.01758536696434021, 0.06915067136287689, 0.02173001505434513, 0.054791565984487534, -0.031157007440924644, -0.0064593711867928505, 0.032559771090745926, 0.05506078526377678, -0.009964311495423317, 0.00...
29	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a43801_r.txt	01a43801_r.txt	TXT	text/plain	10,748	Robert L. Newton v. Department of the Army 01A43801 August 31, 2004 . Robert L. Newton, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.	August 31, 2004	Appeal Number: 01A43801 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated April 6, 2004, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his formal complaint dated March 20, 2004, complainant alleged that he was subjected to discrimination on the bases of disability and age.<1> In its final decision dated April 6, 2004, the agency determined that complainant's complaint was comprised of the following two claims: on November 20, 2003, [complainant was not] selected for the position of Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement No. SWGR03291202), (a 27 year old white male was selected); and on November 20, 2003, [complainant was not] selected for the position of Park Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement No. SWGR03405956), (a 27 year old white male was selected). The agency dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the agency stated that complainant did not initiate EEO counseling until January 21, 2004, the date complainant and complainant's representative sent a formal EEO complaint to the agency. The agency further asserted that [t]here were earlier e-mails to the ...District EEO Office, but the intent of [c]omplainant was unclear. Moreover, the agency stated that [t]hese earlier e-mails can best be described as some sort of strategy session between complainant and the union representative. On appeal, complainant, through his representative, asserts that the agency improperly dismissed his complaint. Specifically, complainant's representative states that [complainant] and his representative [made] initial contact with an EEO official on December 1, 2003 and December 10, 2003. Complainant's representative further states that since no one from the EEO office met with complainant and his representative, they decided to file a formal complaint. In response, the agency asserts complainant contacted an EEO Specialist (E1) via telephone on November 21, 2003 and on November 24, 2003. The agency argues that during the November 24, 2003 telephone conversation, complainant stated to E1 that he did not want to file an EEO complaint regarding his non-selections. The agency asserts that on December 1, 2003, E1 received an e-mail from a union official (U1) referencing a meeting scheduled for December 19, 2003. The agency states that E1 informed U1 that she would not attend this meeting and that if any employees decided to file an EEO complaint they needed to indicate to her their intent to do so. Moreover, the agency asserts that complainant, with the exception of his phone calls made in November 2003, did not make contact with an EEO official until he sent a formal EEO complaint to the agency on January 21, 2004. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Commission finds that the agency's dismissal of complainant's complaint was proper. The record contains copies of numerous e-mails between U1 and E1. In an e-mail dated December 1, 2003, U1 requests to meet with E1 on December 19, 2003 with complainant and another named agency employee (A1) regarding EEO counseling. In response to this e-mail, E1 states, in an e-mail to U1 dated December 5, 2003, that if either of the employees wish to file an EEO complaint they need to contact her and she will assign an EEO Counselor. In an e-mail dated December 9, 2003, U1 states that the employees want to initiate an EEO Counseling meeting. In this e-mail, U1 also asks both agency employees (A1 and complainant) to e-mail E1 and request an EEO Counselor. While the record contains an e-mail from A1 dated December 10, 2003, to E1 requesting someone from the EEO office to meet with him and union officials regarding a possible EEO complaint, the record is devoid of an e-mail or any other documentation from complainant, himself, requesting an EEO Counselor. While the Commission notes that complainant, on appeal, submits a copy of an e-mail that he wrote to U1 dated December 11, 2003, in which he requests E1 to send someone from the EEO office to meet with him on December 19, 2003, the record does not reflect that complainant sent this e-mail to E1. The Commission has generally held that a representative's contact with an EEO official is inadequate as initial EEO Counselor contact where complainant failed to inform the agency that the representative was acting on his behalf. See Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998). The record does not reflect that complainant informed the EEO office that U1 was his designated representative in this EEO matter until January 21, 2004, the date he sent the agency a formal EEO complaint. Therefore, the Commission finds that complainant did not initiate EEO Counselor contact until January 21, 2004, beyond the applicable limitation period. Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.	Robert L. Newton v. Department of the Army 01A43801 August 31, 2004 . Robert L. Newton, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A43801 Agency No. ARCEVICK04FEB0020 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated April 6, 2004, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his formal complaint dated March 20, 2004, complainant alleged that he was subjected to discrimination on the bases of disability and age.<1> In its final decision dated April 6, 2004, the agency determined that complainant's complaint was comprised of the following two claims: on November 20, 2003, [complainant was not] selected for the position of Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement No. SWGR03291202), (a 27 year old white male was selected); and on November 20, 2003, [complainant was not] selected for the position of Park Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement No. SWGR03405956), (a 27 year old white male was selected). The agency dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the agency stated that complainant did not initiate EEO counseling until January 21, 2004, the date complainant and complainant's representative sent a formal EEO complaint to the agency. The agency further asserted that [t]here were earlier e-mails to the ...District EEO Office, but the intent of [c]omplainant was unclear. Moreover, the agency stated that [t]hese earlier e-mails can best be described as some sort of strategy session between complainant and the union representative. On appeal, complainant, through his representative, asserts that the agency improperly dismissed his complaint. Specifically, complainant's representative states that [complainant] and his representative [made] initial contact with an EEO official on December 1, 2003 and December 10, 2003. Complainant's representative further states that since no one from the EEO office met with complainant and his representative, they decided to file a formal complaint. In response, the agency asserts complainant contacted an EEO Specialist (E1) via telephone on November 21, 2003 and on November 24, 2003. The agency argues that during the November 24, 2003 telephone conversation, complainant stated to E1 that he did not want to file an EEO complaint regarding his non-selections. The agency asserts that on December 1, 2003, E1 received an e-mail from a union official (U1) referencing a meeting scheduled for December 19, 2003. The agency states that E1 informed U1 that she would not attend this meeting and that if any employees decided to file an EEO complaint they needed to indicate to her their intent to do so. Moreover, the agency asserts that complainant, with the exception of his phone calls made in November 2003, did not make contact with an EEO official until he sent a formal EEO complaint to the agency on January 21, 2004. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Commission finds that the agency's dismissal of complainant's complaint was proper. The record contains copies of numerous e-mails between U1 and E1. In an e-mail dated December 1, 2003, U1 requests to meet with E1 on December 19, 2003 with complainant and another named agency employee (A1) regarding EEO counseling. In response to this e-mail, E1 states, in an e-mail to U1 dated December 5, 2003, that if either of the employees wish to file an EEO complaint they need to contact her and she will assign an EEO Counselor. In an e-mail dated December 9, 2003, U1 states that the employees want to initiate an EEO Counseling meeting. In this e-mail, U1 also asks both agency employees (A1 and complainant) to e-mail E1 and request an EEO Counselor. While the record contains an e-mail from A1 dated December 10, 2003, to E1 requesting someone from the EEO office to meet with him and union officials regarding a possible EEO complaint, the record is devoid of an e-mail or any other documentation from complainant, himself, requesting an EEO Counselor. While the Commission notes that complainant, on appeal, submits a copy of an e-mail that he wrote to U1 dated December 11, 2003, in which he requests E1 to send someone from the EEO office to meet with him on December 19, 2003, the record does not reflect that complainant sent this e-mail to E1. The Commission has generally held that a representative's contact with an EEO official is inadequate as initial EEO Counselor contact where complainant failed to inform the agency that the representative was acting on his behalf. See Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998). The record does not reflect that complainant informed the EEO office that U1 was his designated representative in this EEO matter until January 21, 2004, the date he sent the agency a formal EEO complaint. Therefore, the Commission finds that complainant did not initiate EEO Counselor contact until January 21, 2004, beyond the applicable limitation period. Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 August 31, 2004 __________________ Date 1The record reflects that complainant initially sent a formal EEO complaint form to the agency on January 21, 2004. The agency construed this formal EEO complaint as a request for EEO counseling and complainant was assigned an EEO Counselor. Upon receiving his Notice of Right to File a Formal Complaint, complainant filed a formal complaint dated March 20, 2004.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "29 U.S....	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30	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a43801.txt	01a43801.txt	TXT	text/plain	10,649	Robert L. Newton v. Department of the Army 01A43801 August 31, 2004 . Robert L. Newton, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.	August 31, 2004	Appeal Number: 01A43801 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated April 6, 2004, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his formal complaint dated March 20, 2004, complainant alleged that he was subjected to discrimination on the bases of disability and age.<1> In its final decision dated April 6, 2004, the agency determined that complainant's complaint was comprised of the following two claims: on November 20, 2003, [complainant was not] selected for the position of Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement No. SWGR03291202), (a 27 year old white male was selected); and on November 20, 2003, [complainant was not] selected for the position of Park Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement No. SWGR03405956), (a 27 year old white male was selected). The agency dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the agency stated that complainant did not initiate EEO counseling until January 21, 2004, the date complainant and complainant's representative sent a formal EEO complaint to the agency. The agency further asserted that [t]here were earlier e-mails to the ...District EEO Office, but the intent of [c]omplainant was unclear. Moreover, the agency stated that [t]hese earlier e-mails can best be described as some sort of strategy session between complainant and the union representative. On appeal, complainant, through his representative, asserts that the agency improperly dismissed his complaint. Specifically, complainant's representative states that [complainant] and his representative [made] initial contact with an EEO official on December 1, 2003 and December 10, 2003. Complainant's representative further states that since no one from the EEO office met with complainant and his representative, they decided to file a formal complaint. In response, the agency asserts complainant contacted an EEO Specialist (E1) via telephone on November 21, 2003 and on November 24, 2003. The agency argues that during the November 24, 2003 telephone conversation, complainant stated to E1 that he did not want to file an EEO complaint regarding his non-selections. The agency asserts that on December 1, 2003, E1 received an e-mail from a union official (U1) referencing a meeting scheduled for December 19, 2003. The agency states that E1 informed U1 that she would not attend this meeting and that if any employees decided to file an EEO complaint they needed to indicate to her their intent to do so. Moreover, the agency asserts that complainant, with the exception of his phone calls made in November 2003, did not make contact with an EEO official until he sent a formal EEO complaint to the agency on January 21, 2004. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Commission finds that the agency's dismissal of complainant's complaint was proper. The record contains copies of numerous e-mails between U1 and E1. In an e-mail dated December 1, 2003, U1 requests to meet with E1 on December 19, 2003 with complainant and another named agency employee (A1) regarding EEO counseling. In response to this e-mail, E1 states, in an e-mail to U1 dated December 5, 2003, that if either of the employees wish to file an EEO complaint they need to contact her and she will assign an EEO Counselor. In an e-mail dated December 9, 2003, U1 states that the employees want to initiate an EEO Counseling meeting. In this e-mail, U1 also asks both agency employees (A1 and complainant) to e-mail E1 and request an EEO Counselor. While the record contains an e-mail from A1 dated December 10, 2003, to E1 requesting someone from the EEO office to meet with him and union officials regarding a possible EEO complaint, the record is devoid of an e-mail or any other documentation from complainant, himself, requesting an EEO Counselor. While the Commission notes that complainant, on appeal, submits a copy of an e-mail that he wrote to U1 dated December 11, 2003, in which he requests E1 to send someone from the EEO office to meet with him on December 19, 2003, the record does not reflect that complainant sent this e-mail to E1. The Commission has generally held that a representative's contact with an EEO official is inadequate as initial EEO Counselor contact where complainant failed to inform the agency that the representative was acting on his behalf. See Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998). The record does not reflect that complainant informed the EEO office that U1 was his designated representative in this EEO matter until January 21, 2004, the date he sent the agency a formal EEO complaint. Therefore, the Commission finds that complainant did not initiate EEO Counselor contact until January 21, 2004, beyond the applicable limitation period. Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.	Robert L. Newton v. Department of the Army 01A43801 August 31, 2004 . Robert L. Newton, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A43801 Agency No. ARCEVICK04FEB0020 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated April 6, 2004, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his formal complaint dated March 20, 2004, complainant alleged that he was subjected to discrimination on the bases of disability and age.<1> In its final decision dated April 6, 2004, the agency determined that complainant's complaint was comprised of the following two claims: on November 20, 2003, [complainant was not] selected for the position of Park Ranger, GS-0025-09 at Enid Lake Field Office (Announcement No. SWGR03291202), (a 27 year old white male was selected); and on November 20, 2003, [complainant was not] selected for the position of Park Ranger (GIS), GS-0025-07/09 at Grenada Lake Field Office (Announcement No. SWGR03405956), (a 27 year old white male was selected). The agency dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the agency stated that complainant did not initiate EEO counseling until January 21, 2004, the date complainant and complainant's representative sent a formal EEO complaint to the agency. The agency further asserted that [t]here were earlier e-mails to the ...District EEO Office, but the intent of [c]omplainant was unclear. Moreover, the agency stated that [t]hese earlier e-mails can best be described as some sort of strategy session between complainant and the union representative. On appeal, complainant, through his representative, asserts that the agency improperly dismissed his complaint. Specifically, complainant's representative states that [complainant] and his representative [made] initial contact with an EEO official on December 1, 2003 and December 10, 2003. Complainant's representative further states that since no one from the EEO office met with complainant and his representative, they decided to file a formal complaint. In response, the agency asserts complainant contacted an EEO Specialist (E1) via telephone on November 21, 2003 and on November 24, 2003. The agency argues that during the November 24, 2003 telephone conversation, complainant stated to E1 that he did not want to file an EEO complaint regarding his non-selections. The agency asserts that on December 1, 2003, E1 received an e-mail from a union official (U1) referencing a meeting scheduled for December 19, 2003. The agency states that E1 informed U1 that she would not attend this meeting and that if any employees decided to file an EEO complaint they needed to indicate to her their intent to do so. Moreover, the agency asserts that complainant, with the exception of his phone calls made in November 2003, did not make contact with an EEO official until he sent a formal EEO complaint to the agency on January 21, 2004. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Commission finds that the agency's dismissal of complainant's complaint was proper. The record contains copies of numerous e-mails between U1 and E1. In an e-mail dated December 1, 2003, U1 requests to meet with E1 on December 19, 2003 with complainant and another named agency employee (A1) regarding EEO counseling. In response to this e-mail, E1 states, in an e-mail to U1 dated December 5, 2003, that if either of the employees wish to file an EEO complaint they need to contact her and she will assign an EEO Counselor. In an e-mail dated December 9, 2003, U1 states that the employees want to initiate an EEO Counseling meeting. In this e-mail, U1 also asks both agency employees (A1 and complainant) to e-mail E1 and request an EEO Counselor. While the record contains an e-mail from A1 dated December 10, 2003, to E1 requesting someone from the EEO office to meet with him and union officials regarding a possible EEO complaint, the record is devoid of an e-mail or any other documentation from complainant, himself, requesting an EEO Counselor. While the Commission notes that complainant, on appeal, submits a copy of an e-mail that he wrote to U1 dated December 11, 2003, in which he requests E1 to send someone from the EEO office to meet with him on December 19, 2003, the record does not reflect that complainant sent this e-mail to E1. The Commission has generally held that a representative's contact with an EEO official is inadequate as initial EEO Counselor contact where complainant failed to inform the agency that the representative was acting on his behalf. See Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998). The record does not reflect that complainant informed the EEO office that U1 was his designated representative in this EEO matter until January 21, 2004, the date he sent the agency a formal EEO complaint. Therefore, the Commission finds that complainant did not initiate EEO Counselor contact until January 21, 2004, beyond the applicable limitation period. Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 August 31, 2004 __________________ Date 1The record reflects that complainant initially sent a formal EEO complaint form to the agency on January 21, 2004. The agency construed this formal EEO complaint as a request for EEO counseling and complainant was assigned an EEO Counselor. Upon receiving his Notice of Right to File a Formal Complaint, complainant filed a formal complaint dated March 20, 2004.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Brinson v. Department of the Army, EEOC Appeal No. 01981424 (December 9, 1998)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "29 U.S....	[ -0.06791941821575165, 0.014168203808367252, -0.04419717192649841, 0.022383643314242363, 0.06998695433139801, 0.09240765124559402, 0.007016011979430914, 0.005885791964828968, -0.0671040415763855, 0.08893737941980362, 0.030498959124088287, 0.014404467307031155, 0.03275996074080467, 0.0140526...
31	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162354.txt	0120162354.txt	TXT	text/plain	15,951	Alejandrina L.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.	June 13, 2016	Appeal Number: 0120162354 Background: At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency's Atlanta Field Office, Drug Enforcement Administration (DEA) facility in Atlanta, Georgia. On September 9, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. in April 2013, she was not selected for a Criminal Investigator, GS-13, position in Barbados, advertised under Vacancy Announcement CMB-13-40V; and 2. between April 30, 2013 and July 29, 2013, DEA employees and officials attempted to discourage Complainant from filing an EEO complaint. The pertinent record shows that Complainant was a Special Agent who had worked for the DEA for more than 25 years. On December 7, 2012, Complainant applied for the position of Criminal Investigator, GS-1811-13, Operations Division, in the Barbados Country Office. On January 23, 2013, Complainant received an email indicating that Complainant was on the Best Qualified List. Complainant was required to obtain comments of support from her chain of command. Complainant submitted the required letters of support. On April 30, 2013, Complainant contacted a Human Resources Specialist to learn the status of her application and was informed that a selection had been made and that she had not been selected. Later that day, Complainant also learned the name of the selectee. On May 1, 2013, Complainant traveled to Chicago, Illinois, to tend to her ailing mother. Complainant's mother died on May 10, 2013. While in Chicago, Complainant also fell ill with pneumonia and was hospitalized for several days. Complainant was on leave from May 1 through May 31, 2013. However, she returned to the office and had full days in the office between June 4, 2013 and June 14, 2013. Complainant called DEA's headquarters EEO Officer on June 13, 2013. He was away due to the death of his own mother and did not return to work until the week of June 24, 2013. Complainant's call was answered by the EEO Officer's assistant, who informed her of his absence. Complainant indicates she simply left a message for the EEO Officer to call her, but does not allege that she told the assistant that she felt she had been discriminated against or that she wanted to file an EEO complaint or talk to an EEO counselor. Complainant indicated that she finally reached the EEO Officer on June 28, 2013, after he returned to the office. He referred her to the EEO counselor assigned to her office, a counselor already known to Complainant.2 According to Complainant, between June 28 and July 8, 2013, she spoke numerous times to the EEO Counselor, who she says warned her of possible management retaliation if she filed an EEO complaint. Complainant eventually filed her formal complaint on September 9, 2013. The Agency accepted the complaint for investigation, but transferred the complaint to another agency due to the allegations involving its own EEO Officer, staff and the Atlanta EEO counselor. When the investigation was not completed within the regulatory timeframe, Complainant requested a hearing with the EEOC's Atlanta District Office. She asked the AJ to sanction the Agency for its failure to comply with the regulatory deadlines for investigation and moved for a default judgment. On May 16, 2014, the AJ ordered the Agency to produce the Report of Investigation and complaint file by June 2, 2014. The Agency responded to Complainant's motion for a default judgment with a motion for summary judgment on June 5, 2014. The AJ granted the Agency's motion in part on October 27, 2015. The AJ found that Complainant did not initiate EEO counseling in a timely fashion concerning her non-selection, and therefore dismissed claim 1 and denied the request for sanctions. The AJ, however, reserved Complainant's allegation concerning being discouraged from utilizing the EEO process for hearing. However, before the hearing was held, the parties entered a settlement agreement resolving this second claim. The Agency adopted the AJ's decision and issued a final decision dismissing the non-selection claim for untimely EEO contact. The Agency also dismissed claim 2 reasoning that the allegation had been the subject of a settlement agreement that resolved the issue. The instant appeal followed. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that a complaint of discrimination be brought to the attention of an EEO 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 45 days of the effective date of the action. Here, pursuant to 29 C.F.R. § 1614.107(b)(2), the AJ dismissed claim 1 as untimely raised.3 The record clearly indicates the trigger date for Complainant's obligation to seek EEO counseling on her non-selection to the Barbados position. It is undisputed that Complainant received notice that she had not been selected for the position in question on April 30, 2013. On that same date, she learned the name of the selectee. Therefore, Complainant had until June 14, 2013, to initiate a request for EEO counseling. However, the AJ determined that Complainant did not initiate EEO contact by exhibiting an intent to begin the complaint process until beyond the 45-day limitation period. Complainant argues that she attempted to contact the EEO Officer at headquarters on June 13, 2013, one day before the expiration of the limitation period. However, she concedes that she only reached his assistant, was told he was out of the office for an extended period, and only left a message to call her. We do not find this was enough to constitute the contact contemplated by 29 C.F.R. § 1614.105(a)(1). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Here, Complainant did not exhibit the necessary intent to begin the complaint process. She does not allege that she told the assistant that she wanted to file a complaint or seek counseling, or even that she believed she was the victim of discrimination. She did not do the most reasonable thing - which was to ask the assistant who else she could speak with concerning a discrimination matter. Therefore, we find that Complainant chose to wait for the EEO Officer to return her telephone call, which he did on June 28, 2013. It was on this date that Complainant first exhibited an intent to enter to EEO process and the EEO Officer immediately referred her to the EEO counselor in her office. This, however, was beyond the 45-day limitation period. Complainant argues that she contacted or attempted to contact other individuals in Human Resources in Virginia, but proffers no indication that she communicated an intent to enter to EEO complaint process during these contacts. Moreover, she concedes on appeal that the one official she actually spoke with occurred on June 17, 2013, beyond the 45-day period. Therefore, we again do not find these contacts to be sufficient to meet the § 1614.105(a)(1) standard. The regulations also provide that the 45-day time limit shall be extended if Complainant shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the counselor within the time limits, or for such other reason considered sufficient by the Commission. Here, Complainant essentially argues that any delay on her part in seeking EEO counseling should be excused for two reasons. First, she notes her own physical and mental incapacity during this time period. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We find in the instant case that, although we are sympathetic to the difficulties endured by Complainant, that she has not met this standard. While Complainant was on leave for the month of May, the record shows she was back at work in early June, in sufficient time to make timely EEO counseling contact. With regard to the absence of the EEO Officer, a circumstance she asserts was beyond her control, we have already determined that it was unreasonable of Complainant to wait for his return rather than inquire of his assistant who else might be of assistance to her. Complainant argues that she wanted to seek the assistance of the headquarters EEO Officer rather than the EEO Counselor in Atlanta because she had been told by coworkers that the Atlanta counselor would report the contact to Atlanta management, which could have a negative impact on her career. She asserts this "had a chilling effect" on her ability to communicate with the counselor in her field office. In general, the Commission has not found that fear of retaliation adequately justifies a delay in seeking EEO counseling. Here, we do not find anything about the circumstances presented that would warrant an exception to this position. While Complainant has explained why she wanted to pursue her claim with EEO officials at the Agency's headquarters rather than in Atlanta, she has not provided adequate explanation for her decision not to pursue the matter with other staff members in the Agency's headquarters EEO office once she learned the EEO Officer was out on leave. In sum, after careful consideration of arguments of the parties, we AFFIRM the Agency's adoption of the AJ's dismissal of claim 1 of the complaint for untimely EEO counselor contact. As we are affirming the dismissal, we decline to address Complainant's other arguments concerning the AJ's denial of Complainant's motion for sanctions.	Alejandrina L.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 0120162354 Agency No. DEA201301093 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 13, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency's Atlanta Field Office, Drug Enforcement Administration (DEA) facility in Atlanta, Georgia. On September 9, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. in April 2013, she was not selected for a Criminal Investigator, GS-13, position in Barbados, advertised under Vacancy Announcement CMB-13-40V; and 2. between April 30, 2013 and July 29, 2013, DEA employees and officials attempted to discourage Complainant from filing an EEO complaint. The pertinent record shows that Complainant was a Special Agent who had worked for the DEA for more than 25 years. On December 7, 2012, Complainant applied for the position of Criminal Investigator, GS-1811-13, Operations Division, in the Barbados Country Office. On January 23, 2013, Complainant received an email indicating that Complainant was on the Best Qualified List. Complainant was required to obtain comments of support from her chain of command. Complainant submitted the required letters of support. On April 30, 2013, Complainant contacted a Human Resources Specialist to learn the status of her application and was informed that a selection had been made and that she had not been selected. Later that day, Complainant also learned the name of the selectee. On May 1, 2013, Complainant traveled to Chicago, Illinois, to tend to her ailing mother. Complainant's mother died on May 10, 2013. While in Chicago, Complainant also fell ill with pneumonia and was hospitalized for several days. Complainant was on leave from May 1 through May 31, 2013. However, she returned to the office and had full days in the office between June 4, 2013 and June 14, 2013. Complainant called DEA's headquarters EEO Officer on June 13, 2013. He was away due to the death of his own mother and did not return to work until the week of June 24, 2013. Complainant's call was answered by the EEO Officer's assistant, who informed her of his absence. Complainant indicates she simply left a message for the EEO Officer to call her, but does not allege that she told the assistant that she felt she had been discriminated against or that she wanted to file an EEO complaint or talk to an EEO counselor. Complainant indicated that she finally reached the EEO Officer on June 28, 2013, after he returned to the office. He referred her to the EEO counselor assigned to her office, a counselor already known to Complainant.2 According to Complainant, between June 28 and July 8, 2013, she spoke numerous times to the EEO Counselor, who she says warned her of possible management retaliation if she filed an EEO complaint. Complainant eventually filed her formal complaint on September 9, 2013. The Agency accepted the complaint for investigation, but transferred the complaint to another agency due to the allegations involving its own EEO Officer, staff and the Atlanta EEO counselor. When the investigation was not completed within the regulatory timeframe, Complainant requested a hearing with the EEOC's Atlanta District Office. She asked the AJ to sanction the Agency for its failure to comply with the regulatory deadlines for investigation and moved for a default judgment. On May 16, 2014, the AJ ordered the Agency to produce the Report of Investigation and complaint file by June 2, 2014. The Agency responded to Complainant's motion for a default judgment with a motion for summary judgment on June 5, 2014. The AJ granted the Agency's motion in part on October 27, 2015. The AJ found that Complainant did not initiate EEO counseling in a timely fashion concerning her non-selection, and therefore dismissed claim 1 and denied the request for sanctions. The AJ, however, reserved Complainant's allegation concerning being discouraged from utilizing the EEO process for hearing. However, before the hearing was held, the parties entered a settlement agreement resolving this second claim. The Agency adopted the AJ's decision and issued a final decision dismissing the non-selection claim for untimely EEO contact. The Agency also dismissed claim 2 reasoning that the allegation had been the subject of a settlement agreement that resolved the issue. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, it is undisputed that Complainant and the Agency resolved the matter raised in claim 2 of her complaint with a settlement agreement. Therefore, we will not address this claim any further. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that a complaint of discrimination be brought to the attention of an EEO 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 45 days of the effective date of the action. Here, pursuant to 29 C.F.R. § 1614.107(b)(2), the AJ dismissed claim 1 as untimely raised.3 The record clearly indicates the trigger date for Complainant's obligation to seek EEO counseling on her non-selection to the Barbados position. It is undisputed that Complainant received notice that she had not been selected for the position in question on April 30, 2013. On that same date, she learned the name of the selectee. Therefore, Complainant had until June 14, 2013, to initiate a request for EEO counseling. However, the AJ determined that Complainant did not initiate EEO contact by exhibiting an intent to begin the complaint process until beyond the 45-day limitation period. Complainant argues that she attempted to contact the EEO Officer at headquarters on June 13, 2013, one day before the expiration of the limitation period. However, she concedes that she only reached his assistant, was told he was out of the office for an extended period, and only left a message to call her. We do not find this was enough to constitute the contact contemplated by 29 C.F.R. § 1614.105(a)(1). The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Here, Complainant did not exhibit the necessary intent to begin the complaint process. She does not allege that she told the assistant that she wanted to file a complaint or seek counseling, or even that she believed she was the victim of discrimination. She did not do the most reasonable thing - which was to ask the assistant who else she could speak with concerning a discrimination matter. Therefore, we find that Complainant chose to wait for the EEO Officer to return her telephone call, which he did on June 28, 2013. It was on this date that Complainant first exhibited an intent to enter to EEO process and the EEO Officer immediately referred her to the EEO counselor in her office. This, however, was beyond the 45-day limitation period. Complainant argues that she contacted or attempted to contact other individuals in Human Resources in Virginia, but proffers no indication that she communicated an intent to enter to EEO complaint process during these contacts. Moreover, she concedes on appeal that the one official she actually spoke with occurred on June 17, 2013, beyond the 45-day period. Therefore, we again do not find these contacts to be sufficient to meet the § 1614.105(a)(1) standard. The regulations also provide that the 45-day time limit shall be extended if Complainant shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the counselor within the time limits, or for such other reason considered sufficient by the Commission. Here, Complainant essentially argues that any delay on her part in seeking EEO counseling should be excused for two reasons. First, she notes her own physical and mental incapacity during this time period. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We find in the instant case that, although we are sympathetic to the difficulties endured by Complainant, that she has not met this standard. While Complainant was on leave for the month of May, the record shows she was back at work in early June, in sufficient time to make timely EEO counseling contact. With regard to the absence of the EEO Officer, a circumstance she asserts was beyond her control, we have already determined that it was unreasonable of Complainant to wait for his return rather than inquire of his assistant who else might be of assistance to her. Complainant argues that she wanted to seek the assistance of the headquarters EEO Officer rather than the EEO Counselor in Atlanta because she had been told by coworkers that the Atlanta counselor would report the contact to Atlanta management, which could have a negative impact on her career. She asserts this "had a chilling effect" on her ability to communicate with the counselor in her field office. In general, the Commission has not found that fear of retaliation adequately justifies a delay in seeking EEO counseling. Here, we do not find anything about the circumstances presented that would warrant an exception to this position. While Complainant has explained why she wanted to pursue her claim with EEO officials at the Agency's headquarters rather than in Atlanta, she has not provided adequate explanation for her decision not to pursue the matter with other staff members in the Agency's headquarters EEO office once she learned the EEO Officer was out on leave. In sum, after careful consideration of arguments of the parties, we AFFIRM the Agency's adoption of the AJ's dismissal of claim 1 of the complaint for untimely EEO counselor contact. As we are affirming the dismissal, we decline to address Complainant's other arguments concerning the AJ's denial of Complainant's motion for sanctions. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 tends 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 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. The requests 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 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 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 March 6, 2017 __________________ Date 2 The EEO Counselor was the same person who had told Complainant the name of the selectee on April 30, 2013, during a casual conversation unrelated to EEO counseling. 3 29 C.F.R. § 1614.109(b) provides that EEOC administrative judges may dismiss complaints pursuant to § 1614.107, on their own initiative or upon an agency's motion. While the parties and the AJ referred to the AJ's action as a decision by summary judgment, we find that it is more appropriately characterized as an order of dismissal as authorized by § 1614.109(b). ------------------------------------------------------------ ------------------------------------------------------------	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998)", "Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.107(b)",...	[ -0.09570799022912979, 0.039442237466573715, -0.09328104555606842, 0.056642137467861176, -0.007474131882190704, 0.042115263640880585, 0.013520736247301102, -0.025376299396157265, -0.03327639773488045, 0.02697211503982544, 0.029873613268136978, -0.001711138873361051, -0.007116583175957203, -...
32	https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020002349.pdf	2020002349.pdf	PDF	application/pdf	13,115	Louvenia S.,1 Complainant, v. Richard S. Tischner, Director, Court Services and Offender Supervision Agency, Agency.	February 15, 2020	Appeal Number: 2020002349 Background: At the time of events giving rise to this EEO case , Complainant was employed by the Agency as a Community Supervision Officer, GS -0101 -12 in Washington, D .C. On October 9, 2019, Complainant initiated EEO counsel ing on her claim that she was discriminated against based on her race (Asian -American), national origin (Pakistani -American), sex (female), religion (Islam), color (Brown), and reprisal for prior protect ed EEO activity under Title VII when she was not competitively promoted to the position of Supervisory Community Supervision Officer. The EEO counselor wrote in her report that on November 12, 2019, she both conducted the initial telephonic interview with Complainant and emailed her the “notice of right s”. She wrote that Complainant did not sign and return the notice , despite her following up with her. The Agency assigned this case docket number EEO -I-19-0013. Thereaf ter, Complainant comp leted an EEO intake form that represented a date of initial contact with the EEO office on December 4, 2019. She alleged therein that she was discriminated against on the above bases when her newly minted secon d line supervisor (S2) blocked and/or obstructed her November 6, 2019 transfer request , and when S2, who previously was her first line supervisor, continued to direct others to increase her workload in November 2019 . By email to the EEO counselor on January 10, 2020, Complainant indicated that she signed and attached the “notice of rights” , apologizing for the delay . She explained that she was out of the office for three weeks , was extremely busy with her caseload , and wished to file an EEO complai nt on the claims she raised in her October 9, 2019 and December 4, 2019 EEO contacts. On January 10, 2020, the EEO counselor responded that because the EEO office closed out this “complaint”, Complainant needed to file a new one with the EEO office. The instant appeal followed . Therein, Complainant identified the appeal as regarding EEO complaint Agency No. EEO -19- 0002 . The Commission notified the Agency thereof, and requested the record . Complainant previous ly filed EEO complaint EEO -19-0002 with the Agency on November 29, 2018. We take administrative notice that since August 2, 2019 , complaint EEO -19-0002 has been pending before the EEOC ’s Washington Field Office hearings unit (EEOC Hearing No. 570 -2019 -01486X ). Shortly after Complainant filed her appeal, the Commission’s appellate intake unit email ed her, with follow -ups, requesting information about what she was appealing . Complainant explained that she contacted the Agency’s EEO office on October 9, 2019 and De cember 4, 2019 with claims that included the Agency retaliating against her for prior EEO complaint EEO -19-0002 . She provided copies of the counselor’s report generated in connection with the first contact, and the intake form in connection with the second purported contact. Complainant writes that on December 10, 2019, she received an email from the EEO counselor stating the 30 day counseling period ended and her “complaint” was closed , with the above counselor’s report attached . Complainant writes that she filed her appeal because the EEO office did not issue her a notice of right to file a complaint , as required by 29 C.F.R. § 1614. 105(d), so she was not afforded the opportunity to file a formal EEO complaint. Legal Analysis: The Commission notified the Agency thereof, and requested the record . Complainant previous ly filed EEO complaint EEO -19-0002 with the Agency on November 29, 2018. We take administrative notice that since August 2, 2019 , complaint EEO -19-0002 has been pending before the EEOC ’s Washington Field Office hearings unit (EEOC Hearing No. 570 -2019 -01486X ). Shortly after Complainant filed her appeal, the Commission’s appellate intake unit email ed her, with follow -ups, requesting information about what she was appealing . Complainant explained that she contacted the Agency’s EEO office on October 9, 2019 and De cember 4, 2019 with claims that included the Agency retaliating against her for prior EEO complaint EEO -19-0002 . She provided copies of the counselor’s report generated in connection with the first contact, and the intake form in connection with the second purported contact. Complainant writes that on December 10, 2019, she received an email from the EEO counselor stating the 30 day counseling period ended and her “complaint” was closed , with the above counselor’s report attached . Complainant writes that she filed her appeal because the EEO office did not issue her a notice of right to file a complaint , as required by 29 C.F.R. § 1614. 105(d), so she was not afforded the opportunity to file a formal EEO complaint. ANALYSIS AND FINDINGS As an initial matter, we acknowledge that the Commission ’s appellate intake unit has not asked the Agency to submit the record for EE O complaint Agency No. EEO -19-0002 . Nevertheless, for the reasons set forth below, we direct the Agency to take certain actions. In her report, the EEO counselor left the “Date of Final Interview” field blank, which suggest s she did not issue Complainant the associated notice of right to file an EEO complaint, as required by 29 C.F.R. § 1614.105(d) .2 Further, the record does not indicate if the Agency processed Complainant’s purported December 4, 2019, EEO contact.	Louvenia S.,1 Complainant, v. Richard S. Tischner, Director, Court Services and Offender Supervision Agency, Agency. Appeal No. 2020002349 Agency No. EEO -I-19-0013 DECISION On February 15, 2020, Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency closed her equal employment opportunity (EEO) case without issuing a final Agency decision (FAD) regarding her claims of unlawful employment discrimination in violation of Title VII o f 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 EEO case , Complainant was employed by the Agency as a Community Supervision Officer, GS -0101 -12 in Washington, D .C. On October 9, 2019, Complainant initiated EEO counsel ing on her claim that she was discriminated against based on her race (Asian -American), national origin (Pakistani -American), sex (female), religion (Islam), color (Brown), and reprisal for prior protect ed EEO activity under Title VII when she was not competitively promoted to the position of Supervisory Community Supervision Officer. The EEO counselor wrote in her report that on November 12, 2019, she both conducted the initial telephonic interview with Complainant and emailed her the “notice of right s”. She wrote that Complainant did not sign and return the notice , despite her following up with her. The Agency assigned this case docket number EEO -I-19-0013. Thereaf ter, Complainant comp leted an EEO intake form that represented a date of initial contact with the EEO office on December 4, 2019. She alleged therein that she was discriminated against on the above bases when her newly minted secon d line supervisor (S2) blocked and/or obstructed her November 6, 2019 transfer request , and when S2, who previously was her first line supervisor, continued to direct others to increase her workload in November 2019 . By email to the EEO counselor on January 10, 2020, Complainant indicated that she signed and attached the “notice of rights” , apologizing for the delay . She explained that she was out of the office for three weeks , was extremely busy with her caseload , and wished to file an EEO complai nt on the claims she raised in her October 9, 2019 and December 4, 2019 EEO contacts. On January 10, 2020, the EEO counselor responded that because the EEO office closed out this “complaint”, Complainant needed to file a new one with the EEO office. The instant appeal followed . Therein, Complainant identified the appeal as regarding EEO complaint Agency No. EEO -19- 0002 . The Commission notified the Agency thereof, and requested the record . Complainant previous ly filed EEO complaint EEO -19-0002 with the Agency on November 29, 2018. We take administrative notice that since August 2, 2019 , complaint EEO -19-0002 has been pending before the EEOC ’s Washington Field Office hearings unit (EEOC Hearing No. 570 -2019 -01486X ). Shortly after Complainant filed her appeal, the Commission’s appellate intake unit email ed her, with follow -ups, requesting information about what she was appealing . Complainant explained that she contacted the Agency’s EEO office on October 9, 2019 and De cember 4, 2019 with claims that included the Agency retaliating against her for prior EEO complaint EEO -19-0002 . She provided copies of the counselor’s report generated in connection with the first contact, and the intake form in connection with the second purported contact. Complainant writes that on December 10, 2019, she received an email from the EEO counselor stating the 30 day counseling period ended and her “complaint” was closed , with the above counselor’s report attached . Complainant writes that she filed her appeal because the EEO office did not issue her a notice of right to file a complaint , as required by 29 C.F.R. § 1614. 105(d), so she was not afforded the opportunity to file a formal EEO complaint. ANALYSIS AND FINDINGS As an initial matter, we acknowledge that the Commission ’s appellate intake unit has not asked the Agency to submit the record for EE O complaint Agency No. EEO -19-0002 . Nevertheless, for the reasons set forth below, we direct the Agency to take certain actions. In her report, the EEO counselor left the “Date of Final Interview” field blank, which suggest s she did not issue Complainant the associated notice of right to file an EEO complaint, as required by 29 C.F.R. § 1614.105(d) .2 Further, the record does not indicate if the Agency processed Complainant’s purported December 4, 2019, EEO contact. Accordingly, the Agency is ordered to take the actions below. ORDER To the extent it has not already done so, the Agency shall issue Complainant a notice of right to file an EEO complaint in association with her October 9, 2019 EEO contact (Agency No. EEO -I- 19-0013) . If Complainant contacted the Agency EEO office on or about December 4, 2019, as represented in the EEO Intake form, the Agency shall issue her a notice of right to file a formal EEO complaint regarding th at contact, if it has not already done so. If the Agency has not issued Complainant a notice of right to file a complaint regarding either contact, and Complainant actually contacted the EEO office of December 4, 2019, the notice shall be for both the October 9, 2019 and December 4, 2019 contacts, and explicitly state so therein. The Agency shall complete these actions within 20 calendar days of the date of this decision. If the Agency already issued Complainant a notice of right to file an EEO complaint , to the extent it has not already done so it shall resume processing Complainant’s case in accordance with 29 C.F.R. Part 1614, i.e., accept or dismiss t he case in whole or part . The Agency shall complete this action within 60 calendar days after the date of this decision. Further, to the extent it h as not already done so, the Agency shall process Complainant’s December 4, 2019, intake matter under 29 C.F.R. Part 1614 . IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s c orrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, re ferencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g) . The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2 In connection with this, we observe that the counselor’s report indicates Complainant did not request Alternative Dispute Resolution. 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 petitio n 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 Ac tion.” 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 admin istrative processing of the complaint, including any petition for enforcement, will be terminated . See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, recon sider 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; o r 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 (3 0) 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 re quest 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 A gency 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 r eceive 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 na me 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 “depar tment” 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, yo u 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. 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33	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131871.r.txt	0120131871.r.txt	TXT	text/plain	11,562	Jasmine M. Drake, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.	March 27, 2013	Appeal Number: 0120131871 Background: During the period at issue, Complainant worked as a Forensic Chemist at the Agency's South Central Laboratory in Dallas, Texas. On November 8, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On February 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when: 1. she resigned (constructive discharge) from her position of Forensic Chemist, GS-1320-12, on June 22, 2012, due to ongoing harassment; 2. the Office of Professional Responsibility (OPR) refused to perform another polygraph examination with respect to her urinalysis testing; and 3. management failed to protect her as a Drug Enforcement Administrative (DEA) employee. The record reflects that Complainant worked as a Forensic Chemist from November 2009 to June 2012. The record further reflects that on October 19, 2011, Complainant was subjected to a random drug urinalysis, and the results indicated a positive urinalysis for cocaine. The record further reflects that the Agency conducted an investigation. As part of the investigation, Complainant submitted to a polygraph test and the results indicated that she was deceptive to the questions. During the relevant period, Complainant was "benched" and her work duties were limited to administrative duties. The record reflects that in June 2012, Complainant resigned from Agency employment. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred from February 2012 through June 22, 2012, but Complainant did not initiate contact with an EEO Counselor until November 8, 2012, which was beyond the forty-five (45) limitation period. The Agency noted that Complainant stated to the EEO Counselor that her reason for delay in contacting a Counselor was that she was not made aware of her rights as a DEA employee before she resigned, and that it was only after she contacted her attorney that she was made aware of her rights to seek EEO counseling. The Agency stated that it contacted Complainant's duty station to determine whether the EEO posters were posted in the facility during the relevant period. The Agency further stated that it was determined that the EEO posters were posted in the facility including the cafeteria. The Agency also found that Complainant was aware of the designated EEO Counselor at the facility who was her colleague up to the time she resigned from the Agency. Complainant, on appeal, argued that the Agency has provided no evidence reflecting that the EEO posters were on display during the relevant period. Specifically, Complainant stated that "there was no date given as to when posters were supposedly in place. What is more, the response contained no specification as to who supplied the EEO this information, nor does is specify the person from the EEO who requested this information." In response, the Agency argued that because the EEO Poster with timeframes was on display in Complainant's workplace, she was or should have been familiar with the 45-day limitation period. The Agency also noted that on June 22, 2010, Complainant attended training on the EEO process from one of DEA's EEO Counselors. In support of its assertions, the Agency submitted a copy of the EEO Counselor's affidavit. The record contains a copy of the EEO Counselor's affidavit dated May 24, 2013. Therein, the EEO Counselor stated that on September 8 and 9, 2008, he attended EEO Counselor training and "it was during this training that I became aware of the federal mandate requiring the display of the 'EEO Counselors' poster in an area accessible to all employees." The EEO Counselor stated that upon his return from the training, he received "a new 'EEO Counselors' poster that included my name and contact information. I displayed this new poster on a corkboard in the South Central Laboratory's cafeteria, replacing the previously displayed 'EEO Counselor's poster that included the prior EEO Counselor's name and contact information." Further, the EEO Counselor stated that from September 2008 to present, the corkboard in the cafeteria "has continuously bore an 'EEO Counselor' poster setting forth EEO complaint procedures, including the requirement to contact an Agency EEO Counselor within 45 days after the occurrence of alleged discrimination." The instant appeal followed. Legal Analysis: 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752-53 (1st Cir. 1988). In this case, the Agency has stated that it posted an EEO poster in Complainant's work facility containing information regarding EEO rights as well as the applicable time limits for initiating an EEO counseling process. The Agency also stated that on June 22, 2010 Complainant attended training which covered the 45-day limitation period. Complainant has not contradicted the Agency's contention. Based on the foregoing, we note that the Agency has provided this Commission with information sufficient to determine that Complainant in fact had constructive knowledge of the time limits for EEO Counselor contact. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113 S.Ct. 1940 (1993).	Jasmine M. Drake, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 0120131871 Agency No. DEA-2013-00131 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 27, 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. BACKGROUND During the period at issue, Complainant worked as a Forensic Chemist at the Agency's South Central Laboratory in Dallas, Texas. On November 8, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On February 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when: 1. she resigned (constructive discharge) from her position of Forensic Chemist, GS-1320-12, on June 22, 2012, due to ongoing harassment; 2. the Office of Professional Responsibility (OPR) refused to perform another polygraph examination with respect to her urinalysis testing; and 3. management failed to protect her as a Drug Enforcement Administrative (DEA) employee. The record reflects that Complainant worked as a Forensic Chemist from November 2009 to June 2012. The record further reflects that on October 19, 2011, Complainant was subjected to a random drug urinalysis, and the results indicated a positive urinalysis for cocaine. The record further reflects that the Agency conducted an investigation. As part of the investigation, Complainant submitted to a polygraph test and the results indicated that she was deceptive to the questions. During the relevant period, Complainant was "benched" and her work duties were limited to administrative duties. The record reflects that in June 2012, Complainant resigned from Agency employment. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred from February 2012 through June 22, 2012, but Complainant did not initiate contact with an EEO Counselor until November 8, 2012, which was beyond the forty-five (45) limitation period. The Agency noted that Complainant stated to the EEO Counselor that her reason for delay in contacting a Counselor was that she was not made aware of her rights as a DEA employee before she resigned, and that it was only after she contacted her attorney that she was made aware of her rights to seek EEO counseling. The Agency stated that it contacted Complainant's duty station to determine whether the EEO posters were posted in the facility during the relevant period. The Agency further stated that it was determined that the EEO posters were posted in the facility including the cafeteria. The Agency also found that Complainant was aware of the designated EEO Counselor at the facility who was her colleague up to the time she resigned from the Agency. Complainant, on appeal, argued that the Agency has provided no evidence reflecting that the EEO posters were on display during the relevant period. Specifically, Complainant stated that "there was no date given as to when posters were supposedly in place. What is more, the response contained no specification as to who supplied the EEO this information, nor does is specify the person from the EEO who requested this information." In response, the Agency argued that because the EEO Poster with timeframes was on display in Complainant's workplace, she was or should have been familiar with the 45-day limitation period. The Agency also noted that on June 22, 2010, Complainant attended training on the EEO process from one of DEA's EEO Counselors. In support of its assertions, the Agency submitted a copy of the EEO Counselor's affidavit. The record contains a copy of the EEO Counselor's affidavit dated May 24, 2013. Therein, the EEO Counselor stated that on September 8 and 9, 2008, he attended EEO Counselor training and "it was during this training that I became aware of the federal mandate requiring the display of the 'EEO Counselors' poster in an area accessible to all employees." The EEO Counselor stated that upon his return from the training, he received "a new 'EEO Counselors' poster that included my name and contact information. I displayed this new poster on a corkboard in the South Central Laboratory's cafeteria, replacing the previously displayed 'EEO Counselor's poster that included the prior EEO Counselor's name and contact information." Further, the EEO Counselor stated that from September 2008 to present, the corkboard in the cafeteria "has continuously bore an 'EEO Counselor' poster setting forth EEO complaint procedures, including the requirement to contact an Agency EEO Counselor within 45 days after the occurrence of alleged discrimination." The instant appeal followed. 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752-53 (1st Cir. 1988). In this case, the Agency has stated that it posted an EEO poster in Complainant's work facility containing information regarding EEO rights as well as the applicable time limits for initiating an EEO counseling process. The Agency also stated that on June 22, 2010 Complainant attended training which covered the 45-day limitation period. Complainant has not contradicted the Agency's contention. Based on the foregoing, we note that the Agency has provided this Commission with information sufficient to determine that Complainant in fact had constructive knowledge of the time limits for EEO Counselor contact. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113 S.Ct. 1940 (1993). Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact. 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 (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 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 August 5, 2013 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)", "Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)", "861 F.2d 746", "113 S.Ct. 1940", "29 C....	[ -0.048636917024850845, 0.0738469734787941, -0.010861271061003208, 0.04492722451686859, 0.03096771240234375, 0.00955889280885458, 0.024893254041671753, -0.0027844267897307873, -0.0511026568710804, 0.011039874516427517, 0.06737338751554489, -0.02274930290877819, -0.039734259247779846, -0.001...
34	https://www.eeoc.gov/sites/default/files/decisions/2022_11_04/2022002094.pdf	2022002094.pdf	PDF	application/pdf	11,305	a Breanne H .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.	February 8, 2022	Appeal Number: 2022002094 Background: At the time of events giving rise to this complaint, Complainant worked as a Housekeeper at the Agency’s Loch Raven Medical Center in Baltimore, Maryland. On September 9, 2021, Complainant contacted the EEO Counselor. On December 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. From January 8 through March 2021, Complainant was harassed on several occasions by a coworker (Coworker 1) as follows: expletives were used such as “I don’t f**king know,” to a question, talking about genitals, and pushing a housekeeping cart into Complainant and blocking the exit; and 2. In April 2021, a coworker (Coworker 2), made comments about reporting the incident in claim 1, and berated Complainant in the presence of patients and employees . The Agency dismissed the complaint for unti mely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that although Complainant emailed an EEO Specialist on April 16, 2021, the EEO Specialist provided an email of Complainant’s correspondence, which showed that Complainant was provided with a tri -fold attachment describing the EEO process. According to the Agency, the information provided by the EEO Specialist stated that an EEO complaint required contact with an EEO Counselor within 45 days. The instant appeal followed. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.105(a)(1) . The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determ ine 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 t he 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 awar e 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). A complainant satisfies the requirement of C ounselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep't of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep't of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, the record discloses th at the last alleged discriminatory event occurred in April 2021, but Complainant did not initiate contact with an EEO Counselor until September 9, 2021, which is beyond the forty- five (45) day limitation period. However, on appeal, Complainant argues that the Agency’s dismissal was improper. Complainant maintains that her contact with the EEO Specialist initiated the EEO process, and therefore, the contact was timely. Complainant state s that the EEO Specialist did not make it clear that she needed to con tact the Office of Resolution Management to start the EEO process. Complainant adds that the EEO Specialist initiated conversations with management and implemented harassment workshops but failed to indicate that Complainant needed to take an additional s tep to continue the EEO process. In response, t he Agency maintains that the EEO Specialist provided Complainant with a document that explained the EEO process and timelines. The Agency asserts that Complainant approached the EEO Specialist regarding compliance with a no -contact order and the summary of the conversation evidenced no intent to file a discrimination complaint. The Agency further notes that there is no evidence of any follow -up communication from Complainant to the EEO Specialist regarding a discrimination complaint. A review of the record shows that the brochure that the EEO Specialist provided to Complainant outlined the procedures and timelines to file an EEO complaint, including the requirement to initiate contact with an EEO Counselor by calling or visiting an Office of Resolution Management Field Office. Administrative File at 96- 98. While the email memorializes a meeting between Complainant and the EE O Specialist, we do not find that Complainant exhibited the intent to pursue an EEO complaint on that date. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with t he EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Therefore, we find that the Agency's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, was proper.	Kimberly Simmons a/k/a Breanne H .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002094 Agency No. 2004 -0512- 2021105602 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 8, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeper at the Agency’s Loch Raven Medical Center in Baltimore, Maryland. On September 9, 2021, Complainant contacted the EEO Counselor. On December 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. From January 8 through March 2021, Complainant was harassed on several occasions by a coworker (Coworker 1) as follows: expletives were used such as “I don’t f**king know,” to a question, talking about genitals, and pushing a housekeeping cart into Complainant and blocking the exit; and 2. In April 2021, a coworker (Coworker 2), made comments about reporting the incident in claim 1, and berated Complainant in the presence of patients and employees . The Agency dismissed the complaint for unti mely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that although Complainant emailed an EEO Specialist on April 16, 2021, the EEO Specialist provided an email of Complainant’s correspondence, which showed that Complainant was provided with a tri -fold attachment describing the EEO process. According to the Agency, the information provided by the EEO Specialist stated that an EEO complaint required contact with an EEO Counselor within 45 days. The instant appeal followed. ANALYSIS AND FINDINGS 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 , pursuant to EEOC Regulation 29 C.F.R. § 1614.105(a)(1) . The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determ ine 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 t he 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 awar e 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). A complainant satisfies the requirement of C ounselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep't of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep't of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, the record discloses th at the last alleged discriminatory event occurred in April 2021, but Complainant did not initiate contact with an EEO Counselor until September 9, 2021, which is beyond the forty- five (45) day limitation period. However, on appeal, Complainant argues that the Agency’s dismissal was improper. Complainant maintains that her contact with the EEO Specialist initiated the EEO process, and therefore, the contact was timely. Complainant state s that the EEO Specialist did not make it clear that she needed to con tact the Office of Resolution Management to start the EEO process. Complainant adds that the EEO Specialist initiated conversations with management and implemented harassment workshops but failed to indicate that Complainant needed to take an additional s tep to continue the EEO process. In response, t he Agency maintains that the EEO Specialist provided Complainant with a document that explained the EEO process and timelines. The Agency asserts that Complainant approached the EEO Specialist regarding compliance with a no -contact order and the summary of the conversation evidenced no intent to file a discrimination complaint. The Agency further notes that there is no evidence of any follow -up communication from Complainant to the EEO Specialist regarding a discrimination complaint. A review of the record shows that the brochure that the EEO Specialist provided to Complainant outlined the procedures and timelines to file an EEO complaint, including the requirement to initiate contact with an EEO Counselor by calling or visiting an Office of Resolution Management Field Office. Administrative File at 96- 98. While the email memorializes a meeting between Complainant and the EE O Specialist, we do not find that Complainant exhibited the intent to pursue an EEO complaint on that date. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with t he EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Therefore, we find that the Agency's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, was proper. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED . STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider thi s appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appell ate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. I f the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complain ant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunit y Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 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 act ion, 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 tit led 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 October 11, 2022 Date	[ "Howard v. Dep't of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)", "Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018)", "Cristantiello v. Dep't of the Army , EEOC Appeal No. 01992817 (Dec. 19, 2000)", "Cox v. Dep't of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 19...	[ -0.06524057686328888, 0.07741507887840271, 0.0030699714552611113, 0.06798574328422546, 0.03343953564763069, 0.008516689762473106, 0.03899011388421059, -0.07409343123435974, -0.007482115179300308, 0.06878993660211563, -0.002358141588047147, -0.034401871263980865, -0.007237490266561508, -0.0...
35	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A44620_r.txt	01A44620_r.txt	TXT	text/plain	11,031	Stanley Coleman v. Department of Veterans Affairs 01A44620 October 28, 2004 . Stanley Coleman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.	October 28, 2004	Appeal Number: 01A44620 Complaint Allegations: In his complaint, complainant, a Charge Nurse, alleged that he was subjected to discrimination on the basis of sex (male) when on October 3, 2003, his request to be placed on a compressed work schedule was denied. In dismissing the complaint, the agency stated that although the event occurred on October 3, 2003, complainant did not contact an EEO Counselor until February 26, 2004, which was beyond the 45-day time frame for timely EEO Counselor contact. The agency noted that although complainant had spoken with an EEO Manager on or about October 31, 2003, complainant did not exhibit an intent to pursue the EEO process because he came to the EEO office only for information regarding the EEO complaint process and to learn of other options available to him to get his issues addressed. On appeal, complainant re-asserts that the time period should be equitably tolled because when he spoke with the EEO Manager about his complaint, she indicated that complainant should resolve the matter by requesting a meeting with his supervisory chain of command. Complainant argues that he did so and when the outcome was not productive, he again contacted the EEO office. Case Facts: Complainant filed this appeal with the Commission from a June 1, 2004 agency decision, dismissing his complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor in a timely manner. In his complaint, complainant, a Charge Nurse, alleged that he was subjected to discrimination on the basis of sex (male) when on October 3, 2003, his request to be placed on a compressed work schedule was denied. In dismissing the complaint, the agency stated that although the event occurred on October 3, 2003, complainant did not contact an EEO Counselor until February 26, 2004, which was beyond the 45-day time frame for timely EEO Counselor contact. The agency noted that although complainant had spoken with an EEO Manager on or about October 31, 2003, complainant did not exhibit an intent to pursue the EEO process because he came to the EEO office only for information regarding the EEO complaint process and to learn of other options available to him to get his issues addressed. On appeal, complainant re-asserts that the time period should be equitably tolled because when he spoke with the EEO Manager about his complaint, she indicated that complainant should resolve the matter by requesting a meeting with his supervisory chain of command. Complainant argues that he did so and when the outcome was not productive, he again contacted the EEO office. The record contains a Report of Contact (Report) from the EEO Manager which reflects that complainant came to the EEO office on October 30, 2003, for information regarding the EEO process and after being advised about the length of time involved in the EEO process, complainant informed the EEO Manager that he did not want to file a complaint because he wanted his complaint resolved as soon as possible. The Report also reflects that complainant alleged that he requested a compressed workweek to attend school and that when he submitted the forms, his supervisor returned them to him twice and denied his request. The Report also indicates that complainant alleged that he was asked to document how it would benefit the agency for him to attend school and other nurses were allowed to attend school without a hassle. The Report reflects that complainant was asked by the EEO Manager whether he had talked to his supervisor's supervisor (Person A) to convey his concerns and complainant stated that he had asked for a meeting but that he did not receive a response. The Report reflects further that the EEO Manager suggested that complainant put his request for a meeting in writing. The EEO Manager was sent a copy of complainant's request for the meeting. The Report also reflects that after some time passed, complainant contacted the EEO Manager again to inform her that he was not granted a meeting and that the EEO Manager told him to resubmit his complaint. The record also contains a Counselor's Report which reveals that complainant contacted the EEO office again on February 26, 2004. The Counselor's Report also reveals that complainant alleged that he was denied a compressed work schedule on February 10, 2004. Also contained in the record is a February 19, 2004 electronic mail message from complainant to Person A requesting a meeting regarding complainant's performance and "unit level" issues. The message also reflects that complainant had requested a meeting on October 31, 2003. A copy of the February 19, 2004 message was sent to the EEO Manager. The record contains an October 31, 2003 electronic message from complainant to the EEO Manager with an attachment relating to a meeting with Person A. In a February 20, 2004 electronic message from Person A to complainant, Person A stated that she had been of the understanding that complainant and his supervisor were meeting regularly since his first request in the hope that the issues would be resolved but because that was not the case, Person A would set up a meeting. Legal Analysis: the Commission from a June 1, 2004 agency decision, dismissing his complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor in a timely manner. In his complaint, complainant, a Charge Nurse, alleged that he was subjected to discrimination on the basis of sex (male) when on October 3, 2003, his request to be placed on a compressed work schedule was denied. In dismissing the complaint, the agency stated that although the event occurred on October 3, 2003, complainant did not contact an EEO Counselor until February 26, 2004, which was beyond the 45-day time frame for timely EEO Counselor contact. The agency noted that although complainant had spoken with an EEO Manager on or about October 31, 2003, complainant did not exhibit an intent to pursue the EEO process because he came to the EEO office only for information regarding the EEO complaint process and to learn of other options available to him to get his issues addressed. On appeal, complainant re-asserts that the time period should be equitably tolled because when he spoke with the EEO Manager about his complaint, she indicated that complainant should resolve the matter by requesting a meeting with his supervisory chain of command. Complainant argues that he did so and when the outcome was not productive, he again contacted the EEO office. The record contains a Report of Contact (Report) from the EEO Manager which reflects that complainant came to the EEO office on October 30, 2003, for information regarding the EEO process and after being advised about the length of time involved in the EEO process, complainant informed the EEO Manager that he did not want to file a complaint because he wanted his complaint resolved as soon as possible. The Report also reflects that complainant alleged that he requested a compressed workweek to attend school and that when he submitted the forms, his supervisor returned them to him twice and denied his request. The Report also indicates that complainant alleged that he was asked to document how it would benefit the agency for him to attend school and other nurses were allowed to attend school without a hassle. The Report reflects that complainant was asked by the EEO Manager whether he had talked to his supervisor's supervisor (Person A) to convey his concerns and complainant stated that he had asked for a meeting but that he did not receive a response. The Report reflects further that the EEO Manager suggested that complainant put his request for a meeting in writing. The EEO Manager was sent a copy of complainant's request for the meeting. The Report also reflects that after some time passed, complainant contacted the EEO Manager again to inform her that he was not granted a meeting and that the EEO Manager told him to resubmit his complaint. The record also contains a Counselor's Report which reveals that complainant contacted the EEO office again on February 26, 2004. The Counselor's Report also reveals that complainant alleged that he was denied a compressed work schedule on February 10, 2004. Also contained in the record is a February 19, 2004 electronic mail message from complainant to Person A requesting a meeting regarding complainant's performance and "unit level" issues. The message also reflects that complainant had requested a meeting on October 31, 2003. A copy of the February 19, 2004 message was sent to the EEO Manager. The record contains an October 31, 2003 electronic message from complainant to the EEO Manager with an attachment relating to a meeting with Person A. In a February 20, 2004 electronic message from Person A to complainant, Person A stated that she had been of the understanding that complainant and his supervisor were meeting regularly since his first request in the hope that the issues would be resolved but because that was not the case, Person A would set up a meeting. 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 also provide that the agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c). Upon review, the Commission finds that the agency's decision was proper. We find that complainant had a reasonable suspicion of discrimination in October 2003, when he was denied a compressed work schedule. We find further that although complainant contacted the EEO office on October 30, 2003, and spoke with the EEO Manager, an individual logically connected to the EEO process, he did not exhibit an intent to pursue the EEO complaint process. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). The Commission finds that complainant was instead pursuing informal efforts to resolve his complaint and that he did not contact the EEO Manager again until February 2004, to begin the EEO process and this was beyond the requisite time period. The Commission has consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). The Commission is also not persuaded that the agency discouraged complainant from engaging in the EEO process or otherwise misled complainant into pursuing informal efforts to resolve his complaint, such that the time limitation period should be equitably tolled. Final Decision: Accordingly, the agency's decision is AFFIRMED.	Stanley Coleman v. Department of Veterans Affairs 01A44620 October 28, 2004 . Stanley Coleman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A44620 Agency No. 200I-0680-2004101731 DECISION Complainant filed this appeal with the Commission from a June 1, 2004 agency decision, dismissing his complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor in a timely manner. In his complaint, complainant, a Charge Nurse, alleged that he was subjected to discrimination on the basis of sex (male) when on October 3, 2003, his request to be placed on a compressed work schedule was denied. In dismissing the complaint, the agency stated that although the event occurred on October 3, 2003, complainant did not contact an EEO Counselor until February 26, 2004, which was beyond the 45-day time frame for timely EEO Counselor contact. The agency noted that although complainant had spoken with an EEO Manager on or about October 31, 2003, complainant did not exhibit an intent to pursue the EEO process because he came to the EEO office only for information regarding the EEO complaint process and to learn of other options available to him to get his issues addressed. On appeal, complainant re-asserts that the time period should be equitably tolled because when he spoke with the EEO Manager about his complaint, she indicated that complainant should resolve the matter by requesting a meeting with his supervisory chain of command. Complainant argues that he did so and when the outcome was not productive, he again contacted the EEO office. The record contains a Report of Contact (Report) from the EEO Manager which reflects that complainant came to the EEO office on October 30, 2003, for information regarding the EEO process and after being advised about the length of time involved in the EEO process, complainant informed the EEO Manager that he did not want to file a complaint because he wanted his complaint resolved as soon as possible. The Report also reflects that complainant alleged that he requested a compressed workweek to attend school and that when he submitted the forms, his supervisor returned them to him twice and denied his request. The Report also indicates that complainant alleged that he was asked to document how it would benefit the agency for him to attend school and other nurses were allowed to attend school without a hassle. The Report reflects that complainant was asked by the EEO Manager whether he had talked to his supervisor's supervisor (Person A) to convey his concerns and complainant stated that he had asked for a meeting but that he did not receive a response. The Report reflects further that the EEO Manager suggested that complainant put his request for a meeting in writing. The EEO Manager was sent a copy of complainant's request for the meeting. The Report also reflects that after some time passed, complainant contacted the EEO Manager again to inform her that he was not granted a meeting and that the EEO Manager told him to resubmit his complaint. The record also contains a Counselor's Report which reveals that complainant contacted the EEO office again on February 26, 2004. The Counselor's Report also reveals that complainant alleged that he was denied a compressed work schedule on February 10, 2004. Also contained in the record is a February 19, 2004 electronic mail message from complainant to Person A requesting a meeting regarding complainant's performance and "unit level" issues. The message also reflects that complainant had requested a meeting on October 31, 2003. A copy of the February 19, 2004 message was sent to the EEO Manager. The record contains an October 31, 2003 electronic message from complainant to the EEO Manager with an attachment relating to a meeting with Person A. In a February 20, 2004 electronic message from Person A to complainant, Person A stated that she had been of the understanding that complainant and his supervisor were meeting regularly since his first request in the hope that the issues would be resolved but because that was not the case, Person A would set up a meeting. 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 also provide that the agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c). Upon review, the Commission finds that the agency's decision was proper. We find that complainant had a reasonable suspicion of discrimination in October 2003, when he was denied a compressed work schedule. We find further that although complainant contacted the EEO office on October 30, 2003, and spoke with the EEO Manager, an individual logically connected to the EEO process, he did not exhibit an intent to pursue the EEO complaint process. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). The Commission finds that complainant was instead pursuing informal efforts to resolve his complaint and that he did not contact the EEO Manager again until February 2004, to begin the EEO process and this was beyond the requisite time period. The Commission has consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). The Commission is also not persuaded that the agency discouraged complainant from engaging in the EEO process or otherwise misled complainant into pursuing informal efforts to resolve his complaint, such that the time limitation period should be equitably tolled. Accordingly, the agency's decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 October 28, 2004 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)", "29 C.F.R. § 1614.107(a)", "29 C.F.R...	[ -0.09024996310472488, 0.07316669821739197, -0.06533963978290558, 0.06297236680984497, 0.05024171620607376, -0.008608716540038586, 0.050011612474918365, -0.02721128799021244, 0.017322460189461708, 0.011629504151642323, 0.040517210960388184, -0.001654322724789381, -0.13835516571998596, 0.059...
36	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a46140.txt	01a46140.txt	TXT	text/plain	14,445	Margaret A. West v. Department of Health and Human Services, 01A46140 September 12, 2005 . Margaret A. West, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.	September 12, 2005	Appeal Number: 01A46140 Case Facts: On May 29, 2004, complainant, an Associate Field Director, GS-14, filed a formal EEO complaint wherein she claimed that she was discriminated against on the basis of her race (Caucasian) when on September 11, 2000, she was not selected for the position of Deputy Field Director.<1> The agency accepted the complaint for investigation. Subsequent to the completion of the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 27, 2003, the agency filed a Motion for Summary Judgment. The agency argued that complainant was untimely in her contact of an EEO Counselor. According to the agency, although complainant was notified of her nonselection on September 11, 2000, she did not contact an EEO Counselor until February 28, 2001. The agency contended that complainant had actual notice of the time requirements and procedures for initiating an EEO complaint. The agency stated that complainant was scheduled to receive comprehensive EEO training in July 1999, that included coverage of the requirement that complainants contact an EEO Counselor within 45 days of the alleged discriminatory act. With regard to complainant's argument that she was unaware of the 45-day limitation period, the agency challenged that argument by noting that complainant contacted an EEO Counselor only two days after her upgrade application was denied. The agency maintains that complainant chose not to contact an EEO Counselor after her nonselection because she did not want to jeopardize the support she was receiving from agency officials for an upgrade of her position to the GS-15 level. As for the merits of the complaint, the agency asserted that there is no specific and substantial evidence of pretext or discriminatory intent regarding complainant's nonselection. In her Opposition to the agency's Motion for Summary Judgment, complainant maintained that she was unaware of the 45-day limitation period for contacting an EEO Counselor until February 28, 2001. Complainant claimed that she did not contact an EEO Counselor until April 1, 2001. Complainant argued that the agency did not provide her with any EEO training as she did not attend the EEO training conducted in Seattle in July 1999. Complainant asserted that there were no EEO postings in the common areas of the Seattle office. With respect to the merits of her complaint, complainant contended that a wealth of evidence supports a finding that the selectee's race was at least a motivating factor in the selectee being chosen over her. By decision dated August 18, 2004, the AJ granted the agency's Motion for Summary Judgment. The AJ found that complainant's EEO contact was made in an untimely manner and he therefore dismissed the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.109(b). The AJ stated that complainant's handwritten notes where she agreed not to file an EEO complaint implicitly indicate knowledge of a deadline to initiate a complaint. The AJ reasoned that complainant was waiting for the result of her request for a grade increase before initiating an EEO complaint with regard to her nonselection. The AJ found that complainant's contact of an EEO Counselor two days after she learned that her position would not be upgraded indicated that complainant had knowledge of the EEO process and the need to timely contact an EEO Counselor. The AJ issued complainant appeal rights to the Commission rather than transferring the complaint to the agency for issuance of a final action. Complainant subsequently filed the instant appeal with the Commission on September 15, 2004. Complainant argues that the AJ erred by finding that her awareness that she had a right to file an EEO complaint necessarily also meant that she was aware of the procedural prerequisites and time limits. Complainant maintains that she did not know she needed to contact an EEO Counselor to initiate an EEO complaint and that she did not know she needed to do so within 45 days. In response, the agency asserts that complainant made a deliberate decision not to file a complaint, and when her application for an upgrade was denied, she knew how to initiate a complaint without delay. The agency argues that complainant's experience with personnel rules and procedures and her conduct clearly show that she was aware of the complaint process and the need to act without delay. The agency argues that if the AJ's decision on timeliness is overruled, then on remand the AJ should be instructed to rule on the remaining grounds asserted in its Motion for Summary Judgment. Initially, we observe that the AJ erred in issuing complainant appeal rights to the Commission. The AJ should have instead transferred the complaint to the agency for issuance of a final action. However, in light of the agency's opposition to complainant's appeal, we will treat this matter as if the agency had adopted the AJ's decision. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988)). Legal Analysis: the Commission rather than transferring the complaint to the agency for issuance of a final action. Complainant subsequently filed the instant appeal with the Commission on September 15, 2004. Complainant argues that the AJ erred by finding that her awareness that she had a right to file an EEO complaint necessarily also meant that she was aware of the procedural prerequisites and time limits. Complainant maintains that she did not know she needed to contact an EEO Counselor to initiate an EEO complaint and that she did not know she needed to do so within 45 days. In response, the agency asserts that complainant made a deliberate decision not to file a complaint, and when her application for an upgrade was denied, she knew how to initiate a complaint without delay. The agency argues that complainant's experience with personnel rules and procedures and her conduct clearly show that she was aware of the complaint process and the need to act without delay. The agency argues that if the AJ's decision on timeliness is overruled, then on remand the AJ should be instructed to rule on the remaining grounds asserted in its Motion for Summary Judgment. Initially, we observe that the AJ erred in issuing complainant appeal rights to the Commission. The AJ should have instead transferred the complaint to the agency for issuance of a final action. However, in light of the agency's opposition to complainant's appeal, we will treat this matter as if the agency had adopted the AJ's decision. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988)). Upon review of the record, we find that the agency has not established that complainant had actual or constructive notice of the 45-day limitation period for contacting an EEO Counselor. Complainant claims that she did not attend the EEO training session in July 1999 in Seattle. The agency has not submitted evidence that establishes complainant attended that training. Complainant argues that EEO posters were not present in the common areas at her work facility. In its Motion for Summary Judgment, the agency acknowledged that it had not yet been able to obtain conclusive evidence that an EEO notice was posted in the Seattle Field Office at the time in question. There is no indication in the record that the agency has submitted such evidence since it filed the Motion for Summary Judgment. We find that complainant's awareness that she could utilize the EEO process with regard to her nonselection was not by itself sufficient to establish that complainant had actual or constructive notice of the 45-day limitation period for contacting an EEO Counselor. We note there is disagreement as to when complainant initiated contact with an EEO Counselor. The agency asserts that complainant's EEO contact occurred on February 28, 2001, two days after she learned that her application for a position upgrade had been denied. The agency utilizes complainant's prompt EEO contact after the denial to support its position that complainant was aware of the 45-day limitation period. Complainant maintains that she became aware of the 45-day limitation on February 28, 2001, but that she did not initiate contact with an EEO Counselor until April 2001. Assuming arguendo, that complainant initiated contact with an EEO Counselor on February 28, 2001, we find that still would not establish that complainant had actual or constructive notice of the 45-day limitation period. Based on the evidence within the record, we find that complainant initiated contact with an EEO Counselor in a timely manner.	Margaret A. West v. Department of Health and Human Services, 01A46140 September 12, 2005 . Margaret A. West, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency. Appeal No. 01A46140 Agency No. HRS-105-01 Hearing No. 380-2002-08096X DECISION On May 29, 2004, complainant, an Associate Field Director, GS-14, filed a formal EEO complaint wherein she claimed that she was discriminated against on the basis of her race (Caucasian) when on September 11, 2000, she was not selected for the position of Deputy Field Director.<1> The agency accepted the complaint for investigation. Subsequent to the completion of the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 27, 2003, the agency filed a Motion for Summary Judgment. The agency argued that complainant was untimely in her contact of an EEO Counselor. According to the agency, although complainant was notified of her nonselection on September 11, 2000, she did not contact an EEO Counselor until February 28, 2001. The agency contended that complainant had actual notice of the time requirements and procedures for initiating an EEO complaint. The agency stated that complainant was scheduled to receive comprehensive EEO training in July 1999, that included coverage of the requirement that complainants contact an EEO Counselor within 45 days of the alleged discriminatory act. With regard to complainant's argument that she was unaware of the 45-day limitation period, the agency challenged that argument by noting that complainant contacted an EEO Counselor only two days after her upgrade application was denied. The agency maintains that complainant chose not to contact an EEO Counselor after her nonselection because she did not want to jeopardize the support she was receiving from agency officials for an upgrade of her position to the GS-15 level. As for the merits of the complaint, the agency asserted that there is no specific and substantial evidence of pretext or discriminatory intent regarding complainant's nonselection. In her Opposition to the agency's Motion for Summary Judgment, complainant maintained that she was unaware of the 45-day limitation period for contacting an EEO Counselor until February 28, 2001. Complainant claimed that she did not contact an EEO Counselor until April 1, 2001. Complainant argued that the agency did not provide her with any EEO training as she did not attend the EEO training conducted in Seattle in July 1999. Complainant asserted that there were no EEO postings in the common areas of the Seattle office. With respect to the merits of her complaint, complainant contended that a wealth of evidence supports a finding that the selectee's race was at least a motivating factor in the selectee being chosen over her. By decision dated August 18, 2004, the AJ granted the agency's Motion for Summary Judgment. The AJ found that complainant's EEO contact was made in an untimely manner and he therefore dismissed the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 1614.109(b). The AJ stated that complainant's handwritten notes where she agreed not to file an EEO complaint implicitly indicate knowledge of a deadline to initiate a complaint. The AJ reasoned that complainant was waiting for the result of her request for a grade increase before initiating an EEO complaint with regard to her nonselection. The AJ found that complainant's contact of an EEO Counselor two days after she learned that her position would not be upgraded indicated that complainant had knowledge of the EEO process and the need to timely contact an EEO Counselor. The AJ issued complainant appeal rights to the Commission rather than transferring the complaint to the agency for issuance of a final action. Complainant subsequently filed the instant appeal with the Commission on September 15, 2004. Complainant argues that the AJ erred by finding that her awareness that she had a right to file an EEO complaint necessarily also meant that she was aware of the procedural prerequisites and time limits. Complainant maintains that she did not know she needed to contact an EEO Counselor to initiate an EEO complaint and that she did not know she needed to do so within 45 days. In response, the agency asserts that complainant made a deliberate decision not to file a complaint, and when her application for an upgrade was denied, she knew how to initiate a complaint without delay. The agency argues that complainant's experience with personnel rules and procedures and her conduct clearly show that she was aware of the complaint process and the need to act without delay. The agency argues that if the AJ's decision on timeliness is overruled, then on remand the AJ should be instructed to rule on the remaining grounds asserted in its Motion for Summary Judgment. Initially, we observe that the AJ erred in issuing complainant appeal rights to the Commission. The AJ should have instead transferred the complaint to the agency for issuance of a final action. However, in light of the agency's opposition to complainant's appeal, we will treat this matter as if the agency had adopted the AJ's decision. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988)). Upon review of the record, we find that the agency has not established that complainant had actual or constructive notice of the 45-day limitation period for contacting an EEO Counselor. Complainant claims that she did not attend the EEO training session in July 1999 in Seattle. The agency has not submitted evidence that establishes complainant attended that training. Complainant argues that EEO posters were not present in the common areas at her work facility. In its Motion for Summary Judgment, the agency acknowledged that it had not yet been able to obtain conclusive evidence that an EEO notice was posted in the Seattle Field Office at the time in question. There is no indication in the record that the agency has submitted such evidence since it filed the Motion for Summary Judgment. We find that complainant's awareness that she could utilize the EEO process with regard to her nonselection was not by itself sufficient to establish that complainant had actual or constructive notice of the 45-day limitation period for contacting an EEO Counselor. We note there is disagreement as to when complainant initiated contact with an EEO Counselor. The agency asserts that complainant's EEO contact occurred on February 28, 2001, two days after she learned that her application for a position upgrade had been denied. The agency utilizes complainant's prompt EEO contact after the denial to support its position that complainant was aware of the 45-day limitation period. Complainant maintains that she became aware of the 45-day limitation on February 28, 2001, but that she did not initiate contact with an EEO Counselor until April 2001. Assuming arguendo, that complainant initiated contact with an EEO Counselor on February 28, 2001, we find that still would not establish that complainant had actual or constructive notice of the 45-day limitation period. Based on the evidence within the record, we find that complainant initiated contact with an EEO Counselor in a timely manner. Accordingly, the decision in this matter is REVERSED and we REMAND this complaint to the agency for further processing pursuant to the Order herein. ORDER The agency shall request that the Hearings Unit of the EEOC's Seattle District Office schedule a hearing with regard to this complaint. The agency is directed to submit a copy of the complaint file to the EEOC's Seattle District Office within 15 calendar days of the date this decision becomes final for a decision from an Administrative Judge in accordance with 29 C.F.R. § 1614.109. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the EEOC's Seattle District Office. After receiving a decision from the EEOC Administrative Judge, the agency shall issue a decision in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 12, 2005 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ 1Initially, complainant also claimed discrimination on the bases of her race and sex (female) when on February 26, 2001, the agency failed to upgrade her position to the GS-15 level. However, complainant withdrew this claim from her complaint in her Opposition to the agency's Motion for Summary Judgment.	[ "Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)", "861 F.2d 746", "29 C.F.R. § 1614.109", "29 C.F.R. § 1614.110", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. ...	[ -0.043071258813142776, 0.07548433542251587, -0.008763959631323814, 0.0018356911605224013, -0.0017542238347232342, 0.022455362603068352, 0.009001214057207108, 0.03589629754424095, -0.02305520884692669, 0.07277218252420425, 0.03324482962489128, -0.04235813766717911, -0.06786683201789856, -0....
37	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982191_r.txt	01982191_r.txt	TXT	text/plain	12,948		December 31, 1997	Appeal Number: 01982191 Background: Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. Legal Analysis: the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED.	Linda A. Seth, ) Appellant, ) ) v. ) Appeal No. 01982191 ) Agency No. 4-G-770-1309-96 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §501 et seq. Appellant received the final agency decision on December 31, 1997. The appeal was postmarked January 14, 1998. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: March 16, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations	[]	[ -0.07756242156028748, 0.0765286311507225, -0.015521697700023651, -0.025193028151988983, 0.043365031480789185, 0.013158786110579967, 0.06970669329166412, 0.03462590277194977, -0.014748015441000462, 0.043627481907606125, 0.047217972576618195, -0.0036609829403460026, -0.04352651536464691, -0....
38	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01982191.txt	01982191.txt	TXT	text/plain	13,091		March 16, 1999	Appeal Number: 01982191 Background: Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. Legal Analysis: the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED.	Linda A. Seth v. United States Postal Service 01982191 March 16, 1999 Linda A. Seth, ) Appellant, ) ) v. ) Appeal No. 01982191 ) Agency No. 4-G-770-1309-96 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §501 et seq. Appellant received the final agency decision on December 31, 1997. The appeal was postmarked January 14, 1998. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on March 30, 1996. On June 9, 1996, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her race (caucasian), sex (female), physical disability (back & neck) and in reprisal for her previous EEO activity when from January through April 1996, she was not allowed to bid on assignment vacancies. The record reveals that in May 1993, the agency offered appellant a limited duty permanent reassignment to a modified distribution clerk position due to her physical limitations and in accordance with Article XIII of the National Agreement. At that time, appellant's physical limitations were no lifting, pushing or pulling over 20 pounds; no prolonged standing; no prolonged sitting; no excessive bending; intermittent squatting to one hour; and, intermittent climbing, kneeling, and twisting to two hours. As a result of accepting the limited duty reassignment, appellant elected not to use her seniority to bid on other positions that contained descriptions contrary to her physical limitations. In January 1996, appellant completed a PS Form 1717 to qualify for a vacancy announcement involving a distribution, window service, timekeeping relief and uniform allowance clerk position. On February 5, 1996, the agency notified appellant that she was ineligible to bid on the vacancy because her physical limitations indicated that she could not handle the position. In its final decision dated September 30, 1996, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact on March 30, 1996, was nine days after the expiration of the 45-day limitation period. In an appeal of that final agency decision, appellant argued that she telephoned the EEO Office as soon as she became aware that the reason she did not receive the position was her physical disability. According to appellant, the agency told her she had to wait until she received the proper forms before she could proceed. Appellant claimed that she sent a letter to the EEO Office about 20 days after she called the EEO Office because she had not received the forms. In Linda A. Seth v. United States Postal Service, EEOC Appeal No. 01971272, the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission determined that the agency failed to address appellant's explanation regarding the delay in her EEO contact. The Commission noted that appellant did not clearly identify any incidents which would fall within the 45-day time limit even though she claimed that the agency discriminated against her through April 1996. As part of its supplemental investigation, the agency procured affidavits from appellant and the EEO Counselor referenced by appellant. Appellant stated in her affidavit that she was told by the EEO Counselor that the necessary forms would be mailed to her. Appellant did not provide the date of her telephone call to the EEO Office. The EEO Counselor stated in her affidavit that she does not recall talking to appellant prior to her initial request for counseling. According to the EEO Counselor, when an individual calls the EEO Office for purposes of pursuing the EEO process, proper procedure is to complete an item O-13 and insert it in the individual's file to indicate date of contact. The EEO Counselor stated that an item O-13 was not in appellant's file, thus indicating that appellant did not call the EEO Office prior to her written request for counseling. The EEO Counselor asserted that she also attempted to have appellant clarify when she was told that she could not bid. According to the EEO Counselor, appellant did not provide the requested information. The EEO Counselor stated that the only position appellant bid on was posted on January 23, 1996, and closed on January 30, 1996. The EEO Counselor stated that appellant bid on the position on January 29, 1996, and she was notified by letter dated February 5, 1996, that unless she provided documentation indicating that her limitations had changed, she could not be awarded the position. In its final decision dated December 22, 1997, the agency dismissed appellant's complaint on the grounds that she failed to contact an EEO Counselor in a timely manner. The agency noted that the EEO Counselor had no knowledge of talking with appellant prior to being assigned the case. The agency further noted that the EEO Counselor stated that there was not an item O-13 in appellant's file indicating that appellant did not make telephone contact with the EEO Office. The agency concluded that appellant's EEO contact of March 30, 1996, was nine days after the expiration of the 45-day limitation period. On appeal, appellant requests that the telephone logs and records of the EEO Office for January 1996 through April 1996 be examined. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant was informed by letter dated February 5, 1996, that she would not receive the position upon which she had bid. Appellant claimed that she wrote a letter on March 30, 1996, to the agency within 20 days of her initial telephone call to the EEO Office. Upon review of the record, we find that appellant has not presented sufficient evidence to establish that her contact with an EEO Counselor was timely. Appellant did not indicate in her affidavit a specific date that she called the EEO Office. The EEO Counselor stated that an item O-13 would have been in appellant's file had she called the EEO Office for purposes of pursuing the EEO process, but that appellant's file did not contain an item O-13. We find that the supplemental investigation supports the agency's assertion that appellant's EEO contact was after the expiration of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: March 16, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations	[]	[ -0.08083062618970871, 0.04528170824050903, -0.0041780900210142136, -0.008448665961623192, 0.012549917213618755, 0.02989499643445015, 0.058470893651247025, 0.01901615597307682, -0.0318671278655529, 0.04945976287126541, 0.04234076663851738, 0.005630861036479473, -0.032177358865737915, -0.020...
39	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05980697.txt	05980697.txt	TXT	text/plain	7,962	Margaret K. Godwin v. Defense Logistics Agency 05980697 December 15, 2000 . Margaret K. Godwin, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.	December 15, 2000	Appeal Number: 01974633	Margaret K. Godwin v. Defense Logistics Agency 05980697 December 15, 2000 . Margaret K. Godwin, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency. Request No. 05980697 Appeal No. 01974633 Agency No. DT-97-45 DENIAL OF REQUEST FOR RECONSIDERATION The complainant filed a request with this Commission to reconsider the decision in Margaret K. Godwin v. Defense Logistics Agency, EEOC Appeal No. 01974633 (March 30, 1998).<1> EEOC Regulations provide that the Commission may, in its discretion, reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). For the reasons set forth herein, complainant's request is DENIED. In her complaint, filed on April 14, 1997, complainant claimed that the agency retaliated against her when it removed critical documents from her official personnel file so that they could not be used as evidence in EEO and Merits System Protect Board cases she had pending against the agency. In its April 17, 1997 final decision, the agency dismissed the complaint because she had not discussed the claim with an EEO Counselor prior to filing the complaint. In her appeal, complainant claims that her facility (Tinker Air Force Base) did not have an EEO Counselor, and that she was unable to obtain EEO counseling at another office, despite multiple attempts to do so. Specifically, complainant indicated that she first called the EEO office at a Department of the Army facility, but was told that she had to contact a Defense Logistics Agency EEO office. Complainant indicated that she then called the EEO office in Oklahoma City, OK for five days, leaving messages, but receiving no response. Complainant stated that she thereafter contacted the agency's EEO headquarters office, and received a return call within three days. However, complainant notes that at that point she had already obtained a copy of the formal complaint form, and had sent it to the EEO office in Stockton, CA. Complainant indicated that she believed that the EEO manager at the Stockton office would assign an EEO Counselor once she received the complaint form, but that the EEO manager instead dismissed the complaint. The previous decision found that complainant failed to contact and discuss her claim with an EEO Counselor prior to filing the instant complaint. The Commission noted that complainant failed to submit any evidence to corroborate her account of EEO Counselor contact attempts. The Commission also noted that complainant was familiar with EEO rules and regulations, because of her prior EEO complaint history, and that she provided inadequate justification for her failure to properly contact an EEO Counselor regarding the instant complaint. The Commission affirmed the agency's dismissal of the complaint for failure to contact an EEO Counselor. In her request for reconsideration, complainant states that her account of EEO Counselor contact attempts is accurate. She submits a signed statement from the agency employee she contacted immediately prior to receiving a return call from the EEO headquarters office. Complainant contends that the named employee, whom she identifies as an employee at the agency facility at Tinker Air Force Base, discussed her concerns with her, and provided her with a copy of the complaint form with instructions to send it to the Stockton EEO office. The employee's signed but undated statement indicates that the described contact was made on April 7, 1997, and that the claim in the instant complaint was discussed. The statement also indicates that complainant requested the complaint form, which was faxed to her. However, there is no indication that complainant was instructed to send the completed complaint form to the Stockton EEO office, as complainant has asserted. Moreover, the statement is devoid of any information as to the position this employee holds at the agency, or whether she is an EEO Counselor. The Commission determines that the employee statement submitted by complainant in her request for reconsideration carries very little probative value. The party who signed the statement is not adequately described. Moreover, the employee statement fails to fully confirm complainant's account of her EEO contact attempts, and does not confirm that complainant received instructions to send the complaint form to the Stockton EEO office to obtain EEO counseling. Therefore, we determine that it fails to satisfy the criteria for reconsideration. It is the decision of the Commission to deny this request. After a review of the complainant's request for reconsideration, the previous decision, and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 01974633 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request for reconsideration. COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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 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. RIGHT TO REQUEST COUNSEL (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 December 15, 2000 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 29 C.F.R. Part 1614 in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov.	[ "Margaret K. Godwin v. Defense Logistics Agency, EEOC Appeal No. 01974633 (March 30, 1998)", "29 C.F.R. § 1614.405(b)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.01609029434621334, 0.09554238617420197, -0.004350649658590555, -0.004840414505451918, 0.05829017981886864, 0.07115625590085983, 0.0017612108495086432, 0.04972536861896515, -0.00850103609263897, 0.056996967643499374, 0.02935309335589409, -0.003488130634650588, -0.003398713655769825, 0.01...
40	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01995107_r.txt	01995107_r.txt	TXT	text/plain	14,272		June 7, 1999	Appeal Number: 01995107 Case Facts: Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq. The final decision was received by appellant on June 7, 1999. The appeal was postmarked June 8, 1999. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits was sent to her present organization . . .to advise her on current training education eligibility and benefits. Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be added to my initial complaint made on 6 Sept 96, but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including time frames involved for initiating and processing EEO complaints. The EEO Counselor also noted that appellant was provided with a document entitled Contact With EEO Counselor, Precomplaint Form and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant never returned to initiate a precomplaint. The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had prior EEO activity in September 1996; and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. Legal Analysis: the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be added to my initial complaint made on 6 Sept 96, but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including time frames involved for initiating and processing EEO complaints. The EEO Counselor also noted that appellant was provided with a document entitled Contact With EEO Counselor, Precomplaint Form and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant never returned to initiate a precomplaint. The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had prior EEO activity in September 1996; and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an aggrieved employee as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits was sent to her present organization . . .to advise her on current training education eligibility and benefits. Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be added to my initial complaint made on 6 Sept 96, but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including time frames involved for initiating and processing EEO complaints. The EEO Counselor also noted that appellant was provided with a document entitled Contact With EEO Counselor, Precomplaint Form and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant never returned to initiate a precomplaint. The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had prior EEO activity in September 1996; and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an aggrieved employee as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Accordingly, the agency's decision to dismiss this allegation was proper and is AFFIRMED for the reasons set forth herein. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Appellant argues that she initiated contact with an EEO Counselor in September 1996, regarding the matters raised in her formal complaint. Moreover, the record reflects that appellant also stated that she unsuccessfully attempted to contact the agency EEO office in October 1996. While the record reflects that appellant spoke with an EEO Counselor on September 6, 1996, the Commission finds that appellant's discussion with an EEO Counselor on that occasion does not satisfy the criteria for EEO Counselor contact. The record shows that the September 1996 contact did not manifest an intention to begin the EEO complaint process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Specifically, the record contains the statement of the Chief EEO Counselor, who acknowledged that appellant met with her in September 1996; that appellant requested information on EEO complaint filing procedures; that she did not wish to disclose the nature of her complaint; and that she was advised of her rights in the EEO complaint process, including relevant time frames. Moreover, the Chief EEO Counselor stated that appellant was provided with a pre-complaint form, and that she was apprized that the form was to be submitted within forty-five days of an alleged discriminatory event if she chose to pursue the EEO complaint process. Based on the foregoing, the Commission determines that appellant's initial EEO Counselor contact did not occur on September 6, 1996; that it instead occurred on August 3, 1998; and that her initial EEO Counselor contact was untimely with respect to the thirty-seven allegations leading up to and including her discharge. The Commission is, moreover, unpersuaded by appellant's contention that she made a subsequent unsuccessful attempt to contact the agency EEO office in October 1996. Other than appellant's bare assertion, there is nothing in the record supporting this purported attempt to contact the agency EEO office at that time. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss the thirty-seven allegations addressing incidents leading up to, and including appellant's December 1996 discharge, for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED.	Bernadette A. Ricketts, ) Appellant, ) ) v. ) Appeal No. 01995107 ) Agency No. MNIL98028 F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq. The final decision was received by appellant on June 7, 1999. The appeal was postmarked June 8, 1999. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits was sent to her present organization . . .to advise her on current training education eligibility and benefits. Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be added to my initial complaint made on 6 Sept 96, but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including time frames involved for initiating and processing EEO complaints. The EEO Counselor also noted that appellant was provided with a document entitled Contact With EEO Counselor, Precomplaint Form and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant never returned to initiate a precomplaint. The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had prior EEO activity in September 1996; and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an aggrieved employee as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Accordingly, the agency's decision to dismiss this allegation was proper and is AFFIRMED for the reasons set forth herein. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Appellant argues that she initiated contact with an EEO Counselor in September 1996, regarding the matters raised in her formal complaint. Moreover, the record reflects that appellant also stated that she unsuccessfully attempted to contact the agency EEO office in October 1996. While the record reflects that appellant spoke with an EEO Counselor on September 6, 1996, the Commission finds that appellant's discussion with an EEO Counselor on that occasion does not satisfy the criteria for EEO Counselor contact. The record shows that the September 1996 contact did not manifest an intention to begin the EEO complaint process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Specifically, the record contains the statement of the Chief EEO Counselor, who acknowledged that appellant met with her in September 1996; that appellant requested information on EEO complaint filing procedures; that she did not wish to disclose the nature of her complaint; and that she was advised of her rights in the EEO complaint process, including relevant time frames. Moreover, the Chief EEO Counselor stated that appellant was provided with a pre-complaint form, and that she was apprized that the form was to be submitted within forty-five days of an alleged discriminatory event if she chose to pursue the EEO complaint process. Based on the foregoing, the Commission determines that appellant's initial EEO Counselor contact did not occur on September 6, 1996; that it instead occurred on August 3, 1998; and that her initial EEO Counselor contact was untimely with respect to the thirty-seven allegations leading up to and including her discharge. The Commission is, moreover, unpersuaded by appellant's contention that she made a subsequent unsuccessful attempt to contact the agency EEO office in October 1996. Other than appellant's bare assertion, there is nothing in the record supporting this purported attempt to contact the agency EEO office at that time. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss the thirty-seven allegations addressing incidents leading up to, and including appellant's December 1996 discharge, for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Sept. 14, 1999 __________________________________ DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[ "Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)" ]	[ -0.08163723349571228, 0.04380365088582039, -0.030802046880126, 0.0023674340918660164, 0.0892426148056984, 0.06611907482147217, 0.04128016158938408, 0.08009640872478485, -0.07127124071121216, 0.031086528673768044, 0.02624221332371235, 0.02995014190673828, 0.028127843514084816, 0.00723101757...
41	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01995107.txt	01995107.txt	TXT	text/plain	14,450		September 14, 1999	Appeal Number: 01995107 Case Facts: Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq. The final decision was received by appellant on June 7, 1999. The appeal was postmarked June 8, 1999. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits "was sent to her present organization . . .to advise her on current training education eligibility and benefits." Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be "added to my initial complaint made on 6 Sept 96," but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including "time frames involved for initiating and processing EEO complaints." The EEO Counselor also noted that appellant was provided with a document entitled "Contact With EEO Counselor, Precomplaint Form" and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant "never returned to initiate a precomplaint." The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had "prior EEO activity in September 1996;" and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. Legal Analysis: the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be "added to my initial complaint made on 6 Sept 96," but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including "time frames involved for initiating and processing EEO complaints." The EEO Counselor also noted that appellant was provided with a document entitled "Contact With EEO Counselor, Precomplaint Form" and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant "never returned to initiate a precomplaint." The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had "prior EEO activity in September 1996;" and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits "was sent to her present organization . . .to advise her on current training education eligibility and benefits." Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be "added to my initial complaint made on 6 Sept 96," but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including "time frames involved for initiating and processing EEO complaints." The EEO Counselor also noted that appellant was provided with a document entitled "Contact With EEO Counselor, Precomplaint Form" and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant "never returned to initiate a precomplaint." The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had "prior EEO activity in September 1996;" and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Accordingly, the agency's decision to dismiss this allegation was proper and is AFFIRMED for the reasons set forth herein. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Appellant argues that she initiated contact with an EEO Counselor in September 1996, regarding the matters raised in her formal complaint. Moreover, the record reflects that appellant also stated that she unsuccessfully attempted to contact the agency EEO office in October 1996. While the record reflects that appellant spoke with an EEO Counselor on September 6, 1996, the Commission finds that appellant's discussion with an EEO Counselor on that occasion does not satisfy the criteria for EEO Counselor contact. The record shows that the September 1996 contact did not manifest an intention to begin the EEO complaint process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Specifically, the record contains the statement of the Chief EEO Counselor, who acknowledged that appellant met with her in September 1996; that appellant requested information on EEO complaint filing procedures; that she did not wish to disclose the nature of her complaint; and that she was advised of her rights in the EEO complaint process, including relevant time frames. Moreover, the Chief EEO Counselor stated that appellant was provided with a pre-complaint form, and that she was apprized that the form was to be submitted within forty-five days of an alleged discriminatory event if she chose to pursue the EEO complaint process. Based on the foregoing, the Commission determines that appellant's initial EEO Counselor contact did not occur on September 6, 1996; that it instead occurred on August 3, 1998; and that her initial EEO Counselor contact was untimely with respect to the thirty-seven allegations leading up to and including her discharge. The Commission is, moreover, unpersuaded by appellant's contention that she made a subsequent unsuccessful attempt to contact the agency EEO office in October 1996. Other than appellant's bare assertion, there is nothing in the record supporting this purported attempt to contact the agency EEO office at that time. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss the thirty-seven allegations addressing incidents leading up to, and including appellant's December 1996 discharge, for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED.	Bernadette A. Ricketts v. Department of the Air Force 01995107 September 14, 1999 Bernadette A. Ricketts, ) Appellant, ) ) v. ) Appeal No. 01995107 ) Agency No. MNIL98028 F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq. The final decision was received by appellant on June 7, 1999. The appeal was postmarked June 8, 1999. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The record reflects that on December 9, 1996, appellant was discharged from her agency position during her probationary period, on the grounds of unprofessional conduct. On November 3, 1998, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of race, color, sex, age, and reprisal. On June 3, 1999, the agency issued a final decision. Therein, the agency determined that appellant alleged that she was subjected to a hostile work environment during her employment with the agency. The agency also determined that appellant's complaint was comprised of thirty-seven allegations commencing on March 1, 1996, up to and including her separation from agency employment on December 9, 1996. These incidents included matters relating to threats; circulation of rumors about her; denial of access to rooms in the work site; and denial of performance appraisals. Moreover, the agency found that appellant's complaint addresses one allegation that occurred approximately two years after her discharge. Specifically, appellant alleged that on August 2, 1998, an agency official who previously effected her downgrade and had previously denied her educational benefits "was sent to her present organization . . .to advise her on current training education eligibility and benefits." Th agency dismissed all the allegations raised in appellant's complaint for failure to initiate contact with an EEO Counselor in a timely fashion. The agency noted that on September 6, 1996, appellant contacted an agency EEO official and requested information regarding the EEO complaint process. However, the agency determined that appellant's initial EEO Counselor contact for the matters raised in the instant complaint occurred on August 3, 1998. On appeal, appellant argues that she initiated contact with an EEO Counselor in September 1996. Moreover, the Commission notes that in her formal complaint, appellant stated that she took a copy of correspondence to the agency EEO office on October 19, 1996, to be "added to my initial complaint made on 6 Sept 96," but that no one was in the EEO office at the time she arrived. In response, the agency argues that appellant's initial EEO Counselor contact occurred in October 1998, and that the contact was untimely regarding the matters raised in her formal complaint. The record in this case contains a memorandum dated April 15, 1999, prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor stated that on September 6, 1996, appellant visited the EEO office and requested information regarding filing procedures. The EEO Counselor further stated that appellant did not at that time wish to disclose the nature of the alleged discriminatory actions; and that she was given information relating to the EEO complaint process, including "time frames involved for initiating and processing EEO complaints." The EEO Counselor also noted that appellant was provided with a document entitled "Contact With EEO Counselor, Precomplaint Form" and that she was informed that the form had to be submitted within forty-five days of the date of alleged discriminatory activity if she chose to pursue the EEO complaint process. The EEO Counselor noted that appellant "never returned to initiate a precomplaint." The EEO Counselor also stated that appellant visited the EEO office on August 3, 1998, and stated that she had "prior EEO activity in September 1996;" and that the EEO Counselor informed her that she had never submitted a pre-complaint form identifying the bases and issues involved. The Commission first notes that while the allegation relating to the most recent incident of alleged discrimination (being advised on August 2, 1998, of training eligibility and benefits by an individual who had previously effected her downgrade and denied benefits) was dismissed for untimely EEO Counselor contact, this allegation is more properly analyzed in terms of whether it states a claim. EEOC Regulation 29 C.F.R. §1614.107(a) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the allegations must concern an employment policy or practice which affects the individual in his capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission determines that the matter addressed in the incident of August 2, 1998, does not reflect that appellant suffered a harm or loss relating to a term, condition, or privilege of employment. Accordingly, the agency's decision to dismiss this allegation was proper and is AFFIRMED for the reasons set forth herein. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Appellant argues that she initiated contact with an EEO Counselor in September 1996, regarding the matters raised in her formal complaint. Moreover, the record reflects that appellant also stated that she unsuccessfully attempted to contact the agency EEO office in October 1996. While the record reflects that appellant spoke with an EEO Counselor on September 6, 1996, the Commission finds that appellant's discussion with an EEO Counselor on that occasion does not satisfy the criteria for EEO Counselor contact. The record shows that the September 1996 contact did not manifest an intention to begin the EEO complaint process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Specifically, the record contains the statement of the Chief EEO Counselor, who acknowledged that appellant met with her in September 1996; that appellant requested information on EEO complaint filing procedures; that she did not wish to disclose the nature of her complaint; and that she was advised of her rights in the EEO complaint process, including relevant time frames. Moreover, the Chief EEO Counselor stated that appellant was provided with a pre-complaint form, and that she was apprized that the form was to be submitted within forty-five days of an alleged discriminatory event if she chose to pursue the EEO complaint process. Based on the foregoing, the Commission determines that appellant's initial EEO Counselor contact did not occur on September 6, 1996; that it instead occurred on August 3, 1998; and that her initial EEO Counselor contact was untimely with respect to the thirty-seven allegations leading up to and including her discharge. The Commission is, moreover, unpersuaded by appellant's contention that she made a subsequent unsuccessful attempt to contact the agency EEO office in October 1996. Other than appellant's bare assertion, there is nothing in the record supporting this purported attempt to contact the agency EEO office at that time. Appellant failed to present adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss the thirty-seven allegations addressing incidents leading up to, and including appellant's December 1996 discharge, for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Sept. 14, 1999 __________________________________ DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[ "Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)" ]	[ -0.10142119973897934, 0.04148508608341217, -0.02353499084711075, -0.004637530539184809, 0.10560309141874313, 0.07414020597934723, 0.007410349324345589, 0.05810121074318886, -0.08917097002267838, 0.011208358220756054, 0.021000104025006294, 0.029737668111920357, 0.05567626282572746, -0.00559...
42	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151077.pdf	0120151077.pdf	PDF	application/pdf	16,442	Sofia W.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.	December 30, 2014	Appeal Number: 0120151077 Case Facts: The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the December 30, 2014, final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant w orked as a Surgical Technician in the Surgical Operating Room at the Atlanta VA Medical Center in Decatur, Georgia. Complainant claims that she has been subjected to verbal and physical harassment by her co - workers since August 2011. Among the incidents, Complainant alleges that two anesthesiologist s were physical with her including standing in her way, pushing and bumping into her, and grabbing her. Both anesthesiologists denied knowing Complainant or having any direct contact with her. Complainant further claims that the Nurse Scheduler witnessed one of the anesthesiologists grab her arm and kick her foot; however, the Nurse Scheduler denied witnessing the incident or any other alleged harassing conduct. Complainant claims that the Certified Registered Nurse Anesthesiologist (CRNA) referred to her as a “thing.” CRNA denied referring to Complainant as a “thing;” rather, she stated that she was referring to a piece of equipment. Additionally, Complainant alleges that two other anesthesiologists have stepped in front of her blocking her view while she was reading the assignment board, gave her nasty looks, and made comments such as “this was a bad batch they hired” and “y ou’re not liked here.” Both anesthesiologists denied engaging in or witnessing the conduct alleged. Complainant’s supervisor (S1) explained to Complainant that the assignment board is typically crowded and that it was unlikely that anyone was intentionally blocking her view. Complainant reported her allegations of harassment and bullying to management. Management investigated the allegations and collected statements from numerous employees . No employees reported witnessing the alleged conduct; rather, several employees stated that they were puzzled by and concerned about Complainant’s accusations of physical contact. The investigation did not substantiate Complainant’s allegations. On October 13, 2013 2, Complainant claims that she met with the EEO Specialist regarding her discrimination allegations. Complainant alleges that when she told the EEO Specialist that she wanted to file a complaint, the EEO Specialist advised her to “ talk to [her] supervisor again” and “give it some time.” During a late r meeting, Complainant claims that the EEO Specialist asked her if she wished to continue with her EEO complaint or drop her EEO complaint. Complainant believed that the EEO Specialist was attempting to dissuade her from filing an EEO complaint. On Octo ber 3, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the ba ses of race (African -American) and sex (female) as evidenced by multiple incidents including, inte r alia, management has done nothing about her harassment and bullying complaints; a doctor has continually been physical with her; a co -worker kicked her; a co -worker called her a “thing” and continues to step in front of her; a co -worker has bullied her a nd hit her whenever they are in the same area; a co -worker hit her on the foot and said “it is time for you to go;” and a doctor grabbed her by the arm. In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO activity w hen in October 2013, the EEO Specialist attempted to dissuade her from filing a complaint. At the conclusion of the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. The Agency subsequently conducted a supplemental investigation into Complainant’s per se reprisal claim. Following the supplemental investigation, the Agency issued a FAD i n accordance with Complainant's request pursuant to 29 C.F.R. § 1614.110(b). 2 Complainant claimed that she met with the EEO Specialist in October 2013, while the EEO Specialist produced documentation stating that they met in August 2013. In the FAD, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work envir onment. Further, the Agency found that Complainant failed to show that the alleged conduct was based on discriminatory animus. The Agency determined that each of the alleged harassers denied having engaged in the conduct as alleged and each of Complainan t’s named witnesses could not substantiate her version of the alleged incidents. Additionally, the Agency noted that the findings of the investigation into Complainant’s allegations of harassment failed to substantiate any of the allegations; rather, if any of the conduct occurred, it was inadvertent and due to the proximity of the working environment. As a result, the Agency found that Complainant had not been subjected to a hostile work environment as alleged. With regard to Complainant’s per se repris al claim, Complainant alleged that in her first meeting with the EEO Specialist, she advised her to “talk to her supervisor” and to “give it some time.” The EEO Specialist did not deny making the alleged statements Complainant referenced. The EEO Special ist acknowle dged that when she met with Complainant, she asked Complainant if she had raised her harassment allegations with management. The EEO Specialist insisted that she asked this question in the context of advising Complainant to make management aware of what had been occurring so that the alleged harassment would cease. The EEO Specialist noted that pursuant to the facility’s anti- harassment policy, the facility is responsible for mai ntaining a harassment -free work environment, regardless of whethe r a victim of alleged harassment has filed an EEO complaint . As to the se cond meeting, Complainant claimed that the EEO Specialist asked her to sign documents stating that she agreed to drop her EEO complaint. The EEO Specialist denied that she asked Complainant to sign documents of this nature. The EEO Specialist explained that Complainant is likely referring to the documents she was provided when she informed the EEO Specialist that she was going to withdraw her complaint. The Agency noted that Complainant produced no evidence or further information in support of her allegation. The Agency concluded that Complainant failed to show that any Agency official exerted any pressure on her that would lead a reasonable person to drop her EEO complaint. F urther, the Agency found that Complainant neither alleged nor showed that the EEO Specialist at any point refused to allow her to conti nue to pursue her complaint . As a result, the Agency found that Complainant failed to show that the EEO Specialist’s actions had a “chilling effect” upon her pursuit of her EEO complaint. Accordingly, the Agency found that Complainant’s per se reprisal claim failed. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSI S AND FINDINGS Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) s he belongs to a statutorily protected class; (2) s he was subjected to harassment in the form of unwelcome verbal or physical conduct involving t he protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or c reating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or p ervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that s he was subject ed to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of h er protected classes . Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibi lity determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Compla inant asserted that based on her protected classes, s he was subjected to a hostile work environment based on several incidents where Agency employees took actions that seemed adverse or disruptive to her . The Commission agrees with the Agency that Complainant has not established, by a preponderance of the evidence, that she was subjected to a discriminatory hostile work environment. The Commission finds Complainant failed to show that the alleged incidents and conduct actually occurred. Complainant presented no corroborating evidence and Complainant’s identified witnesses denied witnessing any of the alleg ed harassing conduct. Additionally, management investigated the alleged incidents, but found that Complainant’s claims were unsubstantiated and determined that no disciplinary action was warranted. Even assuming that the incidents occurred as alleged, th ere is no evidence that the alleged conduct was based on discriminatory animus. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. Per Se Reprisal Finally, with regard to Complainant’s claim that the EEO Specialist attempted to dissuade her from filing an EEO complaint, the Commission notes that Legal Analysis: The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the December 30, 2014, final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant w orked as a Surgical Technician in the Surgical Operating Room at the Atlanta VA Medical Center in Decatur, Georgia. Complainant claims that she has been subjected to verbal and physical harassment by her co - workers since August 2011. Among the incidents, Complainant alleges that two anesthesiologist s were physical with her including standing in her way, pushing and bumping into her, and grabbing her. Both anesthesiologists denied knowing Complainant or having any direct contact with her. Complainant further claims that the Nurse Scheduler witnessed one of the anesthesiologists grab her arm and kick her foot; however, the Nurse Scheduler denied witnessing the incident or any other alleged harassing conduct. Complainant claims that the Certified Registered Nurse Anesthesiologist (CRNA) referred to her as a “thing.” CRNA denied referring to Complainant as a “thing;” rather, she stated that she was referring to a piece of equipment. Additionally, Complainant alleges that two other anesthesiologists have stepped in front of her blocking her view while she was reading the assignment board, gave her nasty looks, and made comments such as “this was a bad batch they hired” and “y ou’re not liked here.” Both anesthesiologists denied engaging in or witnessing the conduct alleged. Complainant’s supervisor (S1) explained to Complainant that the assignment board is typically crowded and that it was unlikely that anyone was intentionally blocking her view. Complainant reported her allegations of harassment and bullying to management. Management investigated the allegations and collected statements from numerous employees . No employees reported witnessing the alleged conduct; rather, several employees stated that they were puzzled by and concerned about Complainant’s accusations of physical contact. The investigation did not substantiate Complainant’s allegations. On October 13, 2013 2, Complainant claims that she met with the EEO Specialist regarding her discrimination allegations. Complainant alleges that when she told the EEO Specialist that she wanted to file a complaint, the EEO Specialist advised her to “ talk to [her] supervisor again” and “give it some time.” During a late r meeting, Complainant claims that the EEO Specialist asked her if she wished to continue with her EEO complaint or drop her EEO complaint. Complainant believed that the EEO Specialist was attempting to dissuade her from filing an EEO complaint. On Octo ber 3, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the ba ses of race (African -American) and sex (female) as evidenced by multiple incidents including, inte r alia, management has done nothing about her harassment and bullying complaints; a doctor has continually been physical with her; a co -worker kicked her; a co -worker called her a “thing” and continues to step in front of her; a co -worker has bullied her a nd hit her whenever they are in the same area; a co -worker hit her on the foot and said “it is time for you to go;” and a doctor grabbed her by the arm. In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO activity w hen in October 2013, the EEO Specialist attempted to dissuade her from filing a complaint. At the	Sofia W.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120151077 Agency No. 200I-0508-2013104074 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the December 30, 2014, final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant w orked as a Surgical Technician in the Surgical Operating Room at the Atlanta VA Medical Center in Decatur, Georgia. Complainant claims that she has been subjected to verbal and physical harassment by her co - workers since August 2011. Among the incidents, Complainant alleges that two anesthesiologist s were physical with her including standing in her way, pushing and bumping into her, and grabbing her. Both anesthesiologists denied knowing Complainant or having any direct contact with her. Complainant further claims that the Nurse Scheduler witnessed one of the anesthesiologists grab her arm and kick her foot; however, the Nurse Scheduler denied witnessing the incident or any other alleged harassing conduct. Complainant claims that the Certified Registered Nurse Anesthesiologist (CRNA) referred to her as a “thing.” CRNA denied referring to Complainant as a “thing;” rather, she stated that she was referring to a piece of equipment. Additionally, Complainant alleges that two other anesthesiologists have stepped in front of her blocking her view while she was reading the assignment board, gave her nasty looks, and made comments such as “this was a bad batch they hired” and “y ou’re not liked here.” Both anesthesiologists denied engaging in or witnessing the conduct alleged. Complainant’s supervisor (S1) explained to Complainant that the assignment board is typically crowded and that it was unlikely that anyone was intentionally blocking her view. Complainant reported her allegations of harassment and bullying to management. Management investigated the allegations and collected statements from numerous employees . No employees reported witnessing the alleged conduct; rather, several employees stated that they were puzzled by and concerned about Complainant’s accusations of physical contact. The investigation did not substantiate Complainant’s allegations. On October 13, 2013 2, Complainant claims that she met with the EEO Specialist regarding her discrimination allegations. Complainant alleges that when she told the EEO Specialist that she wanted to file a complaint, the EEO Specialist advised her to “ talk to [her] supervisor again” and “give it some time.” During a late r meeting, Complainant claims that the EEO Specialist asked her if she wished to continue with her EEO complaint or drop her EEO complaint. Complainant believed that the EEO Specialist was attempting to dissuade her from filing an EEO complaint. On Octo ber 3, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the ba ses of race (African -American) and sex (female) as evidenced by multiple incidents including, inte r alia, management has done nothing about her harassment and bullying complaints; a doctor has continually been physical with her; a co -worker kicked her; a co -worker called her a “thing” and continues to step in front of her; a co -worker has bullied her a nd hit her whenever they are in the same area; a co -worker hit her on the foot and said “it is time for you to go;” and a doctor grabbed her by the arm. In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO activity w hen in October 2013, the EEO Specialist attempted to dissuade her from filing a complaint. At the conclusion of the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. The Agency subsequently conducted a supplemental investigation into Complainant’s per se reprisal claim. Following the supplemental investigation, the Agency issued a FAD i n accordance with Complainant's request pursuant to 29 C.F.R. § 1614.110(b). 2 Complainant claimed that she met with the EEO Specialist in October 2013, while the EEO Specialist produced documentation stating that they met in August 2013. In the FAD, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work envir onment. Further, the Agency found that Complainant failed to show that the alleged conduct was based on discriminatory animus. The Agency determined that each of the alleged harassers denied having engaged in the conduct as alleged and each of Complainan t’s named witnesses could not substantiate her version of the alleged incidents. Additionally, the Agency noted that the findings of the investigation into Complainant’s allegations of harassment failed to substantiate any of the allegations; rather, if any of the conduct occurred, it was inadvertent and due to the proximity of the working environment. As a result, the Agency found that Complainant had not been subjected to a hostile work environment as alleged. With regard to Complainant’s per se repris al claim, Complainant alleged that in her first meeting with the EEO Specialist, she advised her to “talk to her supervisor” and to “give it some time.” The EEO Specialist did not deny making the alleged statements Complainant referenced. The EEO Special ist acknowle dged that when she met with Complainant, she asked Complainant if she had raised her harassment allegations with management. The EEO Specialist insisted that she asked this question in the context of advising Complainant to make management aware of what had been occurring so that the alleged harassment would cease. The EEO Specialist noted that pursuant to the facility’s anti- harassment policy, the facility is responsible for mai ntaining a harassment -free work environment, regardless of whethe r a victim of alleged harassment has filed an EEO complaint . As to the se cond meeting, Complainant claimed that the EEO Specialist asked her to sign documents stating that she agreed to drop her EEO complaint. The EEO Specialist denied that she asked Complainant to sign documents of this nature. The EEO Specialist explained that Complainant is likely referring to the documents she was provided when she informed the EEO Specialist that she was going to withdraw her complaint. The Agency noted that Complainant produced no evidence or further information in support of her allegation. The Agency concluded that Complainant failed to show that any Agency official exerted any pressure on her that would lead a reasonable person to drop her EEO complaint. F urther, the Agency found that Complainant neither alleged nor showed that the EEO Specialist at any point refused to allow her to conti nue to pursue her complaint . As a result, the Agency found that Complainant failed to show that the EEO Specialist’s actions had a “chilling effect” upon her pursuit of her EEO complaint. Accordingly, the Agency found that Complainant’s per se reprisal claim failed. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSI S AND FINDINGS Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) s he belongs to a statutorily protected class; (2) s he was subjected to harassment in the form of unwelcome verbal or physical conduct involving t he protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or c reating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or p ervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that s he was subject ed to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of h er protected classes . Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibi lity determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Compla inant asserted that based on her protected classes, s he was subjected to a hostile work environment based on several incidents where Agency employees took actions that seemed adverse or disruptive to her . The Commission agrees with the Agency that Complainant has not established, by a preponderance of the evidence, that she was subjected to a discriminatory hostile work environment. The Commission finds Complainant failed to show that the alleged incidents and conduct actually occurred. Complainant presented no corroborating evidence and Complainant’s identified witnesses denied witnessing any of the alleg ed harassing conduct. Additionally, management investigated the alleged incidents, but found that Complainant’s claims were unsubstantiated and determined that no disciplinary action was warranted. Even assuming that the incidents occurred as alleged, th ere is no evidence that the alleged conduct was based on discriminatory animus. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. Per Se Reprisal Finally, with regard to Complainant’s claim that the EEO Specialist attempted to dissuade her from filing an EEO complaint, the Commission notes that EEOC Regulation 29 C.F.R. § 1614.105(g) provides that the EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. Here, Complainant alleged that the EEO Specialist advised her to talk to her supervisor and later asked her if she was going to sign documents to withdraw her complaint. The EEO Specialist explained that she advised Complainant t o speak with her supervisor only to inform her that it was management’s responsibility to ensure that the work environment was free of harassment. Supp’l ROI, at 34. The EEO Specialist denied attempting to dissuade or interfere with Complainant pursuing her EEO complaint. Id . at 35. Further, the EEO Specialist denied asking Complainant to file a withdrawal form. Id. at 40. Complainant has not shown that she was dissuaded from processing her EEO complaint as a result of the comments made by the EEO Spe cialist. Although the Commission has held that certain acts may constitute per se reprisal, the matter s raised in this case do not rise to the level of per se reprisal . CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT O F RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 appe llate 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 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. T he requests 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 re ceived 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 dismiss al 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 f or 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 with in ninety (90) calendar days from the date that you receive this decision. 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 ful l 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 reconsid er 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 reque st 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 May 26, 2017 Date	[ "682 F.2d 897", "510 U.S. 17", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.105(g)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.09413350373506546, 0.08400944620370865, -0.018856991082429886, 0.030055899173021317, -0.07018159329891205, 0.043325237929821014, 0.02911926992237568, -0.024337224662303925, 0.002861035754904151, 0.02902000956237316, -0.04815177991986275, -0.0019248062744736671, 0.008283259347081184, -0....
43	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019002502.pdf	2019002502.pdf	PDF	application/pdf	8,744	Buck S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.	March 18, 2019	Appeal Number: 2019002502 Background: At the time of events giving rise to this co mplaint, Complainant worked as a Lead Supply Tech, GS-6 at the Agency’s Michael E. DeBakey VA Medical C enter in Houston, T exas (Houston VAMC) . On January 7, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to harassment based on his sex (male) when , on July 30, 2018, a coworker attacked and cut him with a box cutter, resulting in injuries . The Agency dismissed the complaint for failure to file timely initiate EEO counseling. It reasoned that Complainant initiated contact with an EEO counselor on October 9, 2018, beyond the 45- day time limit. Legal Analysis: the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep’t of Def., EEOC Request No. 05930898 (Dec. 9, 1993). Further, Complainant has not submitted evidenc e to support his contention that he unable to timely contact an EEO Counselor because he was incapacitated. Final Decision: Accordingly, the FAD is AFFIRMED.	Buck S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002502 Agency No. 2003-0580-2019100110 DECISION On March 18, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 15, 2019, dismissing his 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 co mplaint, Complainant worked as a Lead Supply Tech, GS-6 at the Agency’s Michael E. DeBakey VA Medical C enter in Houston, T exas (Houston VAMC) . On January 7, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to harassment based on his sex (male) when , on July 30, 2018, a coworker attacked and cut him with a box cutter, resulting in injuries . The Agency dismissed the complaint for failure to file timely initiate EEO counseling. It reasoned that Complainant initiated contact with an EEO counselor on October 9, 2018, beyond the 45- day time limit. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.105(a)(1) provides, in relevant part, that a n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. Furthermore, 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a claim that fails to comply with the applicable time limits contained in §§ 1614.105, unless the agency extends the time limits under applicable law. In his EEO Complaint, Complainant represented that he contacted an identified EEO Specialist at the Houston VAMC EEO Office of Resolution Management (ORM) on August 23, 2018. Thereafter, the Agency contacted the EEO Specialist who signed an affidavit stating there was no record of Complainant contacting this local EEO office. According to the FAD, the EEO Specialist related that Complainant visited the local EEO ORM office previously , but she could not recall the details. EEO ORM e lectronic logs reflect that by telephone on November 30, 2017, Complainant contacted an EEO ORM ( we could not discern the location) claiming he was accused of kissing a worker, and walk ed-in to an EEO ORM on July 26, 2018, complaining he was being passed over for direct hire positions that were not being posted. In the FAD, the Agency represented that the walk -in was to the Houston, VAMC EEO ORM. The EEO counselor wrote on the October 9, 2018 intake sheet that Complainant stated he did not contact EEO ORM within 45 days because he feared reprisal by the Agency. On appeal, Complainant writes that a few weeks after the event he went to talk to the identified EEO Specialist and believed she was handling the matter, but she never gave him information or instruction on next steps to file an EEO complaint, so he inquired with the EEO center in Washington, D .C. He contends that the stabbing triggered his Post Traumatic Stress Disor der (PTSD), and he could not think or remember anything for a few months. In opposition to the appeal, the Agency reiterates that at intake on October 9, 2018, Complainant related that he did not contact EEO ORM within 45 days because he feared reprisal from the Agency , and argues that his new contention that he was mentally unable to initiate EEO contact within 45 days is unsupported. We find that the preponderance of the evidence indicates Complainant did not contact the local EEO Specialist on August 23, 2018. EEO ORM has no record of such a contact. While Complainant also indicated that he delayed pursuing an EEO complaint because he feared reprisal, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep’t of Def., EEOC Request No. 05930898 (Dec. 9, 1993). Further, Complainant has not submitted evidenc e to support his contention that he unable to timely contact an EEO Counselor because he was incapacitated. Accordingly, the FAD 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) calenda r 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 w ithin 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 opposit ion 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 F ILE 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 name as the defendant i n 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 nati onal 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 June 13, 2019 Date	[ "EEO Counselor. Duncan v. Dep’t of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998)", "Kovarik v. Dep’t of Def., EEOC Request No. 05930898 (Dec. 9, 1993)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C...	[ -0.12221598625183105, 0.09863804280757904, -0.003683541901409626, 0.01826029270887375, 0.03910006210207939, 0.03627127781510353, -0.0017204403411597013, 0.022332482039928436, 0.005362201016396284, 0.06479212641716003, 0.04713156074285507, 0.008526911959052086, -0.029934518039226532, -0.008...
44	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170377.txt	0120170377.txt	TXT	text/plain	23,252	Annie F.,1 Complainant, v. Victoria A Lipnic, Acting Chair, Equal Employment Opportunity Commission,2 Agency.	November 5, 2016	Appeal Number: 0120170377 Background: At the time of the events at issue, Complainant worked as a Paralegal, GS-11, at the Agency's Detroit, Michigan Field Office. On September 16, 2016, Complainant filed an EEO complaint alleging discrimination based on her race: 1. When, on September 25, 2015, she was not selected for the position of Trial Attorney (Civil Rights), GS-12/13, located in Detroit, under vacancy announcement D15-OGCLD-1483714-222-LAH,3 and based on reprisal for prior EEO activity under Title VII: 2. When she was given a Letter of Reprimand dated October 30, 2015. Complainant initiated contact with the Agency's Office of Equal Opportunity (OEO) on the above claims on October 30, 2015. At her initial interview with the EEO Counselor on November 12, 2015, Complainant and her attorney-representative (R1)4 were advised of the option to participate in Alternative Dispute Resolution (ADR)/mediation, which is conducted through the Agency's RESOLVE Program, and elected to do so. In an appellate declaration, R1 wrote that, at the initial interview, the EEO Counselor "indicated that the OEO's complaint process would be stayed while the dispute is pending with RESOLVE." On or about November 20, 2015, R1, in his capacity as Chief Steward, filed a Step 1 grievance on behalf of Complainant in the negotiated grievance procedure alleging that the October 30, 2015, Reprimand violated the collective bargaining agreement (CBA) between the union and the Agency. R1, in his capacity of Complainant's attorney-representative for her EEO complaint, later stated that Complainant had opted not to raise her discrimination claims in her grievance. By memorandum dated November 23, 2015, the EEO Counselor notified the RESOLVE Program that Complainant had requested mediation, and that the Notice of Right to File a Formal Complaint would be issued on or before January 28, 2016. Complaint File, p. 46. By letter to Complainant dated January 20, 2016, with copies to her representatives, the EEO Counselor advised that matters resolved in mediation (ADR/RESOLVE) would be administratively closed, and that OEO would resume processing matters that were not resolved. The RESOLVE Program did not conduct an intake call with Complainant and R1 until February 19, 2016. According to R1, RESOLVE advised Complainant that the delay was first caused by short staffing. There was also delay due to scheduling conflicts among the parties. Meanwhile, on January 28, 2016, the EEO Counselor emailed the Notice of Right to File a Complaint (NRF) to R1, with copies to Complainant and her non-attorney representative. The NRF advised Complainant of her right to file a formal complaint within 15 calendar days of receipt thereof,5 and gave an address for doing so. The record contains evidence generated by the Agency's email program that R1 read this email on January 28, 2016 at 11:20 AM. In her report, the EEO Counselor checked off a field which read "Date of Right to File a Discrimination Complaint issued to the Aggrieved Person who elected ADR... ADR has not been completed; 90 days has elapsed... Date January 28, 2016." This was in accordance with 29 C.F.R. § 1614.105(f), which requires that, where the aggrieved person chooses to participate in the ADR procedure (as referenced above), the NRF must be issued if the claim has not been resolved before the 90th day after the request for EEO counseling was initiated. During the February 19, 2016 RESOLVE intake call, Complainant and R1 informed the Director of RESOLVE of her EEO claims and that she had a grievance pending on the Reprimand. According to R1, the RESOLVE Director recommended that Complainant wait until the grievance was closed before proceeding with mediation because otherwise management would be less inclined to settle the grievance. In a subsequent email to OEO eight months later, before the Agency issued its FAD, R1 wrote that the RESOLVE Director had represented in the above intake call that the EEO complaint process would be stayed while the matter was pending with RESOLVE. On May 26, 2016, the president of the union local that covers the Detroit Field Office, two Agency managers, and Complainant entered into a settlement agreement closing her grievance. The Agency agreed to change the title of the Reprimand to "Counseling Memorandum," remove it from Complainant's electronic official personnel folder (eOPF), and not place the Counseling Memorandum in the eOPF. Complainant represented therein that she had no pending claims against the Agency on "this matter," including but not limited to EEO complaints, and that the settlement agreement constituted a request to terminate any outstanding claims on "this matter." By email on June 7, 2016, R1 notified RESOLVE that the grievance was closed via a settlement agreement and that they were now ready to proceed with RESOLVE. Up through August 23, 2016, R1 and Complainant sent several follow up emails to RESOLVE. R1 stated that they received no response until they called RESOLVE on August 24, 2016. The RESOLVE Director responded that day by email that he had asked OEO about the status of Complainant's EEO complaint, which was useful to know before proceeding. After hearing nothing more from RESOLVE, on September 14, 2016, Complainant emailed the RESOLVE Director again, following up. The Director responded that day that the most recent delay was to determine whether RESOLVE would be addressing her EEO complaint, but that it was his understanding that the EEO complaint had been closed in February 2016. The RESOLVE Director wrote that while RESOLVE could not revive her EEO complaint, she could still use RESOLVE to address her concerns about her non-selection, but it would be treated as a non-EEO matter. On September 16, 2016, Complainant filed her EEO complaint alleging claims 1 and 2, above. R1 explained that Complainant did so after learning from the RESOLVE Director's September 14, 2016, response that OEO closed her EEO case. The Agency dismissed the entire complaint on the ground that Complainant did not timely file her formal EEO complaint. It found that R1, Complainant, and her non-attorney representative via email all received the NRF on January 28, 2016, and that the Agency's email program showed R1 opened the email the same day. The Agency found that Complainant filed her EEO complaint on September 16, 2016, far beyond the 15-day time limit. Without gathering statements from the EEO Counselor and the RESOLVE Director, the Agency found that it was not credible that they advised R1 and/or Complainant that the EEO process was stayed until the conclusion of the RESOLVE process. The Agency found that, even if the EEO Counselor made the alleged stay remark, it was clarified and superseded by the January 28, 2016, NRF. The Agency found that, at the very least, after receiving the NRF, it was incumbent on R1 to contact OEO and ask for an explanation rather than just take no action thereon. The Agency found that, assuming the RESOLVE Director made the stay remark during intake on February 19, 2016, this does not change the result, because the time-limit to file the EEO Complaint expired before the RESOLVE Director allegedly gave the stay advice. The Agency also dismissed claim 2 because Complainant previously had elected to use the negotiated grievance procedure on this claim, and then settled the matter. Citing to 29 C.F.R. § 1614.301(a), the Agency found that it was irrelevant whether Complainant had opted not to raise discrimination in her grievance. It further dismissed claim 2 because Complainant had settled the matter in the grievance process; hence, it no longer stated a claim. CONTENTIONS ON APPEAL Complainant's appeal argument was submitted directly by her. Citing to Tommy R. v. Department of Veteran Affairs, EEOC Appeal No. 0120161097 (April 16, 2016), request for reconsideration denied, EEOC Request No. 0520160483 (Nov. 17, 2016), Complainant argues that because she was verbally advised by the EEO Counselor and the RESOLVE Director that the time-limit to file her complaint was stayed while her case was pending with RESOLVE, and she did not learn that RESOLVE efforts had ended and her EEO complaint was closed until September 14, 2016, she timely filed her complaint on September 16, 2016, as this was within 15 days of when ADR failed. Regarding the Agency's finding on the significance of the timing of the RESOLVE Director making the alleged stay remark during the February 19, 2016, RESOLVE intake call, Complainant argues that the Agency fails to mention that she had communications with the RESOLVE Director prior to their intake call, and that he gave the stay advice prior to intake. In her appeal argument, she does not specify when this communication occurred, nor does she submit a sworn statement by herself or anyone else on this. Complainant argues that the Agency improperly dismissed claim 2 because she did not raise reprisal discrimination in the grievance process. She further argues that she filed her grievance after she contacted an EEO Counselor and that the CBA prohibits grieving any pending EEO matters. Complainant also argues that the Agency's brief in opposition to her appeal should not be considered because it was untimely. In opposition to the appeal, the Agency reiterates the findings in the FAD and requests that the FAD be affirmed. 6 STANDARD OF REVIEW The Agency's final action is reviewed de novo. 29 C.F.R. § 1614.405(a). Legal Analysis: the Commission to AFFIRM the Agency's final decision.	Annie F.,1 Complainant, v. Victoria A Lipnic, Acting Chair, Equal Employment Opportunity Commission,2 Agency. Appeal No. 0120170377 Agency No. 2016-0004 DECISION On November 5, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 4, 2016, dismissing her equal employment opportunity (EEO) 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 FAD is AFFIRMED. ISSUES PRESENTED The issues presented are whether the Agency properly dismissed Complainant's entire EEO complaint as untimely, and dismissed part of the complaint because Complainant elected to use the negotiated grievance procedure and then settled the grievance. BACKGROUND At the time of the events at issue, Complainant worked as a Paralegal, GS-11, at the Agency's Detroit, Michigan Field Office. On September 16, 2016, Complainant filed an EEO complaint alleging discrimination based on her race: 1. When, on September 25, 2015, she was not selected for the position of Trial Attorney (Civil Rights), GS-12/13, located in Detroit, under vacancy announcement D15-OGCLD-1483714-222-LAH,3 and based on reprisal for prior EEO activity under Title VII: 2. When she was given a Letter of Reprimand dated October 30, 2015. Complainant initiated contact with the Agency's Office of Equal Opportunity (OEO) on the above claims on October 30, 2015. At her initial interview with the EEO Counselor on November 12, 2015, Complainant and her attorney-representative (R1)4 were advised of the option to participate in Alternative Dispute Resolution (ADR)/mediation, which is conducted through the Agency's RESOLVE Program, and elected to do so. In an appellate declaration, R1 wrote that, at the initial interview, the EEO Counselor "indicated that the OEO's complaint process would be stayed while the dispute is pending with RESOLVE." On or about November 20, 2015, R1, in his capacity as Chief Steward, filed a Step 1 grievance on behalf of Complainant in the negotiated grievance procedure alleging that the October 30, 2015, Reprimand violated the collective bargaining agreement (CBA) between the union and the Agency. R1, in his capacity of Complainant's attorney-representative for her EEO complaint, later stated that Complainant had opted not to raise her discrimination claims in her grievance. By memorandum dated November 23, 2015, the EEO Counselor notified the RESOLVE Program that Complainant had requested mediation, and that the Notice of Right to File a Formal Complaint would be issued on or before January 28, 2016. Complaint File, p. 46. By letter to Complainant dated January 20, 2016, with copies to her representatives, the EEO Counselor advised that matters resolved in mediation (ADR/RESOLVE) would be administratively closed, and that OEO would resume processing matters that were not resolved. The RESOLVE Program did not conduct an intake call with Complainant and R1 until February 19, 2016. According to R1, RESOLVE advised Complainant that the delay was first caused by short staffing. There was also delay due to scheduling conflicts among the parties. Meanwhile, on January 28, 2016, the EEO Counselor emailed the Notice of Right to File a Complaint (NRF) to R1, with copies to Complainant and her non-attorney representative. The NRF advised Complainant of her right to file a formal complaint within 15 calendar days of receipt thereof,5 and gave an address for doing so. The record contains evidence generated by the Agency's email program that R1 read this email on January 28, 2016 at 11:20 AM. In her report, the EEO Counselor checked off a field which read "Date of Right to File a Discrimination Complaint issued to the Aggrieved Person who elected ADR... ADR has not been completed; 90 days has elapsed... Date January 28, 2016." This was in accordance with 29 C.F.R. § 1614.105(f), which requires that, where the aggrieved person chooses to participate in the ADR procedure (as referenced above), the NRF must be issued if the claim has not been resolved before the 90th day after the request for EEO counseling was initiated. During the February 19, 2016 RESOLVE intake call, Complainant and R1 informed the Director of RESOLVE of her EEO claims and that she had a grievance pending on the Reprimand. According to R1, the RESOLVE Director recommended that Complainant wait until the grievance was closed before proceeding with mediation because otherwise management would be less inclined to settle the grievance. In a subsequent email to OEO eight months later, before the Agency issued its FAD, R1 wrote that the RESOLVE Director had represented in the above intake call that the EEO complaint process would be stayed while the matter was pending with RESOLVE. On May 26, 2016, the president of the union local that covers the Detroit Field Office, two Agency managers, and Complainant entered into a settlement agreement closing her grievance. The Agency agreed to change the title of the Reprimand to "Counseling Memorandum," remove it from Complainant's electronic official personnel folder (eOPF), and not place the Counseling Memorandum in the eOPF. Complainant represented therein that she had no pending claims against the Agency on "this matter," including but not limited to EEO complaints, and that the settlement agreement constituted a request to terminate any outstanding claims on "this matter." By email on June 7, 2016, R1 notified RESOLVE that the grievance was closed via a settlement agreement and that they were now ready to proceed with RESOLVE. Up through August 23, 2016, R1 and Complainant sent several follow up emails to RESOLVE. R1 stated that they received no response until they called RESOLVE on August 24, 2016. The RESOLVE Director responded that day by email that he had asked OEO about the status of Complainant's EEO complaint, which was useful to know before proceeding. After hearing nothing more from RESOLVE, on September 14, 2016, Complainant emailed the RESOLVE Director again, following up. The Director responded that day that the most recent delay was to determine whether RESOLVE would be addressing her EEO complaint, but that it was his understanding that the EEO complaint had been closed in February 2016. The RESOLVE Director wrote that while RESOLVE could not revive her EEO complaint, she could still use RESOLVE to address her concerns about her non-selection, but it would be treated as a non-EEO matter. On September 16, 2016, Complainant filed her EEO complaint alleging claims 1 and 2, above. R1 explained that Complainant did so after learning from the RESOLVE Director's September 14, 2016, response that OEO closed her EEO case. The Agency dismissed the entire complaint on the ground that Complainant did not timely file her formal EEO complaint. It found that R1, Complainant, and her non-attorney representative via email all received the NRF on January 28, 2016, and that the Agency's email program showed R1 opened the email the same day. The Agency found that Complainant filed her EEO complaint on September 16, 2016, far beyond the 15-day time limit. Without gathering statements from the EEO Counselor and the RESOLVE Director, the Agency found that it was not credible that they advised R1 and/or Complainant that the EEO process was stayed until the conclusion of the RESOLVE process. The Agency found that, even if the EEO Counselor made the alleged stay remark, it was clarified and superseded by the January 28, 2016, NRF. The Agency found that, at the very least, after receiving the NRF, it was incumbent on R1 to contact OEO and ask for an explanation rather than just take no action thereon. The Agency found that, assuming the RESOLVE Director made the stay remark during intake on February 19, 2016, this does not change the result, because the time-limit to file the EEO Complaint expired before the RESOLVE Director allegedly gave the stay advice. The Agency also dismissed claim 2 because Complainant previously had elected to use the negotiated grievance procedure on this claim, and then settled the matter. Citing to 29 C.F.R. § 1614.301(a), the Agency found that it was irrelevant whether Complainant had opted not to raise discrimination in her grievance. It further dismissed claim 2 because Complainant had settled the matter in the grievance process; hence, it no longer stated a claim. CONTENTIONS ON APPEAL Complainant's appeal argument was submitted directly by her. Citing to Tommy R. v. Department of Veteran Affairs, EEOC Appeal No. 0120161097 (April 16, 2016), request for reconsideration denied, EEOC Request No. 0520160483 (Nov. 17, 2016), Complainant argues that because she was verbally advised by the EEO Counselor and the RESOLVE Director that the time-limit to file her complaint was stayed while her case was pending with RESOLVE, and she did not learn that RESOLVE efforts had ended and her EEO complaint was closed until September 14, 2016, she timely filed her complaint on September 16, 2016, as this was within 15 days of when ADR failed. Regarding the Agency's finding on the significance of the timing of the RESOLVE Director making the alleged stay remark during the February 19, 2016, RESOLVE intake call, Complainant argues that the Agency fails to mention that she had communications with the RESOLVE Director prior to their intake call, and that he gave the stay advice prior to intake. In her appeal argument, she does not specify when this communication occurred, nor does she submit a sworn statement by herself or anyone else on this. Complainant argues that the Agency improperly dismissed claim 2 because she did not raise reprisal discrimination in the grievance process. She further argues that she filed her grievance after she contacted an EEO Counselor and that the CBA prohibits grieving any pending EEO matters. Complainant also argues that the Agency's brief in opposition to her appeal should not be considered because it was untimely. In opposition to the appeal, the Agency reiterates the findings in the FAD and requests that the FAD be affirmed. 6 STANDARD OF REVIEW The Agency's final action is reviewed de novo. 29 C.F.R. § 1614.405(a). ANALYSIS AND FINDINGS Dismissal for Untimely Filing of a Formal Complaint An agency shall dismiss a complaint when a complainant does not file a complaint within 15 days of receipt of the NRF. 29 C.F.R. § 1614.106(b) and 1614.107(a)(2). Where the aggrieved person chooses to participate in the ADR process, the NRF must be issued if the claim has not been resolved before the 90th day after the request for EEO counseling was initiated. 29 C.F.R. § 1614.105(f). When a complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time-frames for receipt of materials shall be computed from the time of receipt by the attorney. 29 C.F.R. § 1614.605(d). Here, Complainant's attorney-representative, R1, received the NRF via email on January 28, 2016. The Agency submitted evidence generated by its email program that R1 read the email on January 28, 2016, and thereafter in February 2016, and deleted and undeleted it twice, thereby showing that he did not overlook this email. It is unclear from the record whether Complainant and/or R1 correctly perceived what the EEO Counselor and the RESOLVE Director allegedly told them regarding a stay to mean that the time-limit to file the EEO complaint was tolled until the conclusion of the RESOLVE process, no matter how long it took. We note that the Agency opined that it was not credible that the EEOC Counselor or the RESOLVE Director advised R1 and/or Complainant that the EEO process was stayed until the conclusion of the RESOLVE process. The Agency should not have assessed the credibility of anyone involved in this case in the absence of, at a minimum, sworn affidavits. Regardless, we find that Complainant failed to timely file her complaint. Once R1 received and opened the email with the attached NRF on January 28, 2016, the 15-day time-limit to file the complaint began to run. The NRF unequivocally informed R1 that "[a]fter receipt of this notice, you have the right to file a formal complaint of discrimination within 15 calendar days" (emphasis in original). Moreover, we fail to see how R1 could believe that the NRF was, we surmise, inadvertently sent after the alleged stay advice, and thus could be ignored. In the email accompanying the attached NRF, the EEO Counselor wrote that the NRF was issued to preserve Complainant's right to file a formal complaint in accordance with regulations, that the time-limit to file the complaint was within 15 calendar days of receipt of the NRF, that this did not interfere with mediation proceedings, that she should continue working with RESOLVE, and to call her with any questions. If the RESOLVE Director had advised Complainant about a stay, as alleged, after R1 received and opened the email with the NRF and before the time limit to file the EEO complaint had elapsed, we may have excused Complainant's late filing. We find, however, that the preponderance of the evidence is that anything the RESOLVE Director said to Complainant and/or R1 about a stay did not occur until the initial intake of February 19, 2016, after the time-limit to file the EEO complaint had expired. In an email to OEO on August 30, 2016, R1 expressed concern that because the NRF was issued on January 28, 2016, OEO might dismiss Complainant's complaint after she filed it, and raised the contentions about the alleged stay advice. After writing therein about the EEO Counselor's alleged stay advice, R1 wrote that the RESOLVE Director "...made the same representation during our intake telephone conference with him, which did not occur until February 19, 2016." Complaint file, at 73. In R1's declaration that Complainant submits on appeal, R1 makes no reference to the RESOLVE Director's alleged stay advice, but does so for the EEO Counselor. While Complainant argues that the RESOLVE Director verbally gave her the stay advice before the intake telephone call, she does not specify when, nor support this argument with a sworn statement. Given all this, we decline to find that the RESOLVE Director gave the alleged stay advice prior to the expiration of Complainant's time-limit to file an EEO complaint. In Tommy R., the following occurred: The EEO Counselor issued the complainant a NRF while ADR was pending, and the complainant responded that ADR was still pending. The EEO Counselor acknowledged this, and the complainant and the EEO Counselor engaged in additional email exchanges regarding scheduling mediation, which EEOC found misled Complainant. Tommy R., EEOC Appeal No. 0120161097 & EEOC Request No. 0520160483. Here, the EEO Counselor allegedly gave Complainant the misleading advice before issuing the NRF, and we find that the RESOLVE Director gave the allegedly misleading advice after Complainant's time-limit to file an EEO complaint expired. We therefore find that Tommy R. is inapposite to the case at bar. Accordingly, we will affirm the Agency's dismissal of Complainant's entire complaint for failing to timely file the complaint.7 Dismissal of Issue 2 The Agency dismissed claim 2 on the additional grounds that Complainant raised her allegation on the Letter of Reprimand in a negotiated grievance, and further, that the claim was the subject of a settlement agreement. We find that the Agency properly dismissed claim 2 because Complainant previously had settled the matter. Specifically, in the May 26, 2016, settlement agreement, Complainant represented that she had no pending claims against the Agency on the Reprimand including, but not limited to, EEO complaints, and agreed that the settlement agreement constituted a request to terminate any outstanding claims concerning the Reprimand.8 CONCLUSION After due consideration of the entire record, including arguments and evidence not specifically addressed in this decision, it is the decision of the Commission to AFFIRM the Agency's final decision. 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 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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: _____________________________________ Carlton M. Hadden's signature Bernadette B. Wilson Acting Executive Officer Executive Secretariat January 9, 2018 ______________________ Date 2 The Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party in this action. The Chair has recused herself from participating in the appellate processing of this case. 3 Complainant graduated from law school in May 2011, and was admitted to the Michigan Bar in May 2012. 4 R1, an attorney, is the Chief Steward of the union local that covers the Detroit Field Office. In her October 30, 2015, OEO initial contact form, Complainant listed R1 and a non-attorney as her representatives, and did so again on a designation of representative form for her EEO complaint on November 12, 2015. Based on who corresponded and attended meetings on Complainant's EEO case, it appears that the non-attorney representative was inactive regarding Complainant's EEO case. 5 The fifteenth day after January 28, 2016, was Friday, February 12, 2016. 6 Any statement or brief in opposition to an appeal must be submitted to the Commission within 30 days of receipt of the statement or brief supporting the appeal. 29 C.F.R. § 1614.403(f). The Agency received Complainant's brief in support of her appeal on November 7, 2016, but did not file its opposition brief until December 8, 2016. See Agency Brief, p. 1, 15. This is beyond the 30-day time-limit specified in the foregoing regulation. Accordingly, while we note the Agency's opposition on appeal, we do not consider its brief. 7 We note that there was a three-month delay between Complainant's request for ADR and the initial intake conference-call, and further delays in contact among Complainant, R1, the RESOLVE Director, and OEO. While these delays were not material to the outcome of this case, the Agency is reminded of its obligation to process EEO matters - whether or not in ADR - in a timely fashion. 8 Because the Agency properly dismissed the entire complaint as untimely filed, and claim 2 because Complainant previously had settled it, we need not address whether the Agency also properly dismissed claim 2 because she elected to file a grievance on the same matter. ------------------------------------------------------------ ------------------------------------------------------------ 01-2017-0377	[ "Tommy R. v. Department of Veteran Affairs, EEOC Appeal No. 0120161097 (April 16, 2016)", "29 C.F.R. § 1614.105(f)", "29 C.F.R. § 1614.301(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.106(b)", "29 C.F.R. § 1614.605(d)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", ...	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45	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120182751.pdf	0120182751.pdf	PDF	application/pdf	12,060	Harry A .,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.	August 13, 2018	Appeal Number: 0120182751 Background: During the period at issue, Complainant worked as a Supervisory Customs and Border Protection Officer (SCBPO) - Instructor, 1895, GS 13, at the Agency’s Federal Law Enforcement Training Center in Glynco, Georgia. On November 21, 2017, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On February 15, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination bas ed on disability when: on June 30, 2017, the Supervisory Mission Support Specialist offered Complainant a hardship transfer to Miami or Port Everglades, Florida at a lower pay grade. In its August 13, 2018 final decision, the Agency dismissed the forma l complaint for 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 November 21, 2017, which it found to be beyond the 45- day limitation period. The instan t appeal followed. On appeal, Complainant argues that the EEO Counselor contact was timely. Complainant explains that he called the local EEO Counselor on July 5, 2017, to schedule an initial interview on July 6, 2017. However, Complainant argues that t he EEO office did not respond to his request , and the EEO office stated that it could not counsel him because he was a temporary employee. Complaint includes a copy of his work calendar which indicates that he had an “11:00 am EE O meeting request” on July 6, 2017. Complainant further argues that his representative email ed the Joint Intake Center (“JIC”) on July 21, 2017, as instructed by the Agency’s D irective Number 5173- 011, which was within the 45-day limitation period . Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employme nt 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 susp icion” 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 w hen 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 occurr ed, that despite due diligence he w as 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). The EEO Counselor’s report reflects that Complainant initiated EEO contact on November 21, 2017, which is more than 45 days after the alleged discriminatory event at issue. The record also indicates that Complainant emailed the Alternative Dispute Resolution Program Coordinator (“ADRPC”) on July 5, 2017 with the following request: I would like to schedule an appointment with you tomorrow morning, if possible, so I can get your feedback on my current situation (emphasis added). We also note that a copy of Complainant’s work calendar i ndicates that he had an EEO meeting scheduled on July 6, 2017. However, we do not find that Complainant exhibited, though his correspondence with the ADRPC, the intent to pursue an EEO complaint at that time. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau , EEOC Request No. 05890086 (June 22, 1989). The record further indicates that the ADRPC stated that “she [did] not recall meeting with [Complainant] at any time, ” and she had no record reflecting the alleged meeting. The ADRPC further stated that her “office has very detailed and specific requirem ents for reporting contacts and [she] would have properly annotated any contact” (emphasis in original). Additionally, Complainant’s argument that he timely initiated EEO Counselor contact when his representative emailed the JIC on July 21, 2017, is als o unpersuasive. In the email to the JIC, Complainant’s representative stated: Pursuant to CBP Directive No. 51713011, my client is alleging a violation of Title VII of the Civil Rights Act, Age Discrimination in Employment Act of 1967. Since July 1, 2017, [Complainant] has been denied reassignments to the Miami/Tampa Field Office at his current pay grade . . . We note that the Directive No. 51713011 is an anti -discriminatory harassment directive and Complainant does not appear to allege discriminatory harassment in his formal complaint. Nevertheless, the Agency Directive specifically states, in S ection 8 - “EEO Complaint/Union Negotiated Grievance Procedures,” that [r]eports made pursuant to this policy do NOT replace, substitute, or otherwise satisfy the separate regulatory requirement to seek informal EEO counseling within 45 calendar . . . if an individual wishes to pursue a claim of discrimination under the applicable federal laws (emphasis in original) . The Agency Directi ve further states in S ection 11 – “Equal Employment Opport unity (EEO) Complainant Process ,” that: Any employee, applicant for employment, or former employee who believes he or she has been discriminated against because of race, color, religion, sex, sexual orientation, nationa l origin, age, physical or mental disability, status as a parent, genetic information, or retaliation for prior EEO involvement, and wishes to file an EEO complaint, must seek informal EEO counseling within 45 calendar days of the alleged discriminatory ac t by contacting the Office of Diversity and Civil Rights EEO Complaint Intake Hotline . . . or the CBP EEO Complainant Filing mailbox . . . Therefore, the record supports that Complainant did not initiate EEO Counselor contact within the 45- day limitation period. The record further indicates that Complainant completed basic EEO Awareness Training and EEO Awareness Training for Supervisors and Managers in 2016. Additionally, the recor d supports that Complainant completed “ No Fear Act ” training s in 2007, 2010, 2011, 2015, and 2017. Thus, Complainant had constructive knowledge of the EEO complainant process, including the 45- day limitation period. The Agency’s final deci sion dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.	Harry A .,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency. Appeal No. 0120182751 Agency No. HSCBP004312018 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 13, 2018, dismissing his complaint of unlawful employment discrimination in violation of 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 Supervisory Customs and Border Protection Officer (SCBPO) - Instructor, 1895, GS 13, at the Agency’s Federal Law Enforcement Training Center in Glynco, Georgia. On November 21, 2017, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On February 15, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination bas ed on disability when: on June 30, 2017, the Supervisory Mission Support Specialist offered Complainant a hardship transfer to Miami or Port Everglades, Florida at a lower pay grade. In its August 13, 2018 final decision, the Agency dismissed the forma l complaint for 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 November 21, 2017, which it found to be beyond the 45- day limitation period. The instan t appeal followed. On appeal, Complainant argues that the EEO Counselor contact was timely. Complainant explains that he called the local EEO Counselor on July 5, 2017, to schedule an initial interview on July 6, 2017. However, Complainant argues that t he EEO office did not respond to his request , and the EEO office stated that it could not counsel him because he was a temporary employee. Complaint includes a copy of his work calendar which indicates that he had an “11:00 am EE O meeting request” on July 6, 2017. Complainant further argues that his representative email ed the Joint Intake Center (“JIC”) on July 21, 2017, as instructed by the Agency’s D irective Number 5173- 011, which was within the 45-day limitation period . ANALYSIS AND FINDINGS The Agency properly dismissed Complainant’s complaint for 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 Employme nt 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 susp icion” 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 w hen 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 occurr ed, that despite due diligence he w as 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). The EEO Counselor’s report reflects that Complainant initiated EEO contact on November 21, 2017, which is more than 45 days after the alleged discriminatory event at issue. The record also indicates that Complainant emailed the Alternative Dispute Resolution Program Coordinator (“ADRPC”) on July 5, 2017 with the following request: I would like to schedule an appointment with you tomorrow morning, if possible, so I can get your feedback on my current situation (emphasis added). We also note that a copy of Complainant’s work calendar i ndicates that he had an EEO meeting scheduled on July 6, 2017. However, we do not find that Complainant exhibited, though his correspondence with the ADRPC, the intent to pursue an EEO complaint at that time. It is well settled that a complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau , EEOC Request No. 05890086 (June 22, 1989). The record further indicates that the ADRPC stated that “she [did] not recall meeting with [Complainant] at any time, ” and she had no record reflecting the alleged meeting. The ADRPC further stated that her “office has very detailed and specific requirem ents for reporting contacts and [she] would have properly annotated any contact” (emphasis in original). Additionally, Complainant’s argument that he timely initiated EEO Counselor contact when his representative emailed the JIC on July 21, 2017, is als o unpersuasive. In the email to the JIC, Complainant’s representative stated: Pursuant to CBP Directive No. 51713011, my client is alleging a violation of Title VII of the Civil Rights Act, Age Discrimination in Employment Act of 1967. Since July 1, 2017, [Complainant] has been denied reassignments to the Miami/Tampa Field Office at his current pay grade . . . We note that the Directive No. 51713011 is an anti -discriminatory harassment directive and Complainant does not appear to allege discriminatory harassment in his formal complaint. Nevertheless, the Agency Directive specifically states, in S ection 8 - “EEO Complaint/Union Negotiated Grievance Procedures,” that [r]eports made pursuant to this policy do NOT replace, substitute, or otherwise satisfy the separate regulatory requirement to seek informal EEO counseling within 45 calendar . . . if an individual wishes to pursue a claim of discrimination under the applicable federal laws (emphasis in original) . The Agency Directi ve further states in S ection 11 – “Equal Employment Opport unity (EEO) Complainant Process ,” that: Any employee, applicant for employment, or former employee who believes he or she has been discriminated against because of race, color, religion, sex, sexual orientation, nationa l origin, age, physical or mental disability, status as a parent, genetic information, or retaliation for prior EEO involvement, and wishes to file an EEO complaint, must seek informal EEO counseling within 45 calendar days of the alleged discriminatory ac t by contacting the Office of Diversity and Civil Rights EEO Complaint Intake Hotline . . . or the CBP EEO Complainant Filing mailbox . . . Therefore, the record supports that Complainant did not initiate EEO Counselor contact within the 45- day limitation period. The record further indicates that Complainant completed basic EEO Awareness Training and EEO Awareness Training for Supervisors and Managers in 2016. Additionally, the recor d supports that Complainant completed “ No Fear Act ” training s in 2007, 2010, 2011, 2015, and 2017. Thus, Complainant had constructive knowledge of the EEO complainant process, including the 45- day limitation period. The Agency’s final deci sion dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this c ase 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 Direct ive 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 r egular 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 filin g 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 act ion, 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. “A gency” 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 November 19, 2018 Date	[ "Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)", "Floyd v. National Guard Bureau , EEOC Request No. 05890086 (June 22, 1989)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.60...	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46	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01990626.r.txt	01990626.r.txt	TXT	text/plain	12,167	Lorraine Menard v. Department of the Navy 01990626 January 5, 2001 . Lorraine Menard, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.	January 5, 2001	Appeal Number: 01990626 Complaint Allegations: In her complaint, complainant alleged that she was subjected to discrimination on the basis of disability (chronic fatigue syndrome) when: Complainant's request for a reduced work schedule using leave without pay was denied in a May 10, 1996 memo which directed her to report to work on a full time basis in six weeks; and Complainant took early retirement on January 3, 1997. Case Facts: Complainant filed a timely appeal with this Commission from an agency decision dated October 1, 1998, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. In her complaint, complainant alleged that she was subjected to discrimination on the basis of disability (chronic fatigue syndrome) when: Complainant's request for a reduced work schedule using leave without pay was denied in a May 10, 1996 memo which directed her to report to work on a full time basis in six weeks; and Complainant took early retirement on January 3, 1997. The agency dismissed complainant's complaint pursuant to the regulation set forth at 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. With regard to issue (1), the agency stated that complainant did not initiate contact with an EEO Counselor until July 6, 1998, which is beyond the applicable forty-five (45) day limitation period for timely contact. In addition, the agency stated that even if complainant's February 4, 1998 letter was received by the agency and constituted a request for counseling, such a request would still be untimely. Specifically, the agency noted that complainant was aware of the time limit for counselor contact as early as June 18, 1996, when she received a certified email from an EEO Counselor informing her of the applicable forty-five (45) day limitation period. Similarly, the agency dismissed issue (2), for untimely EEO Counselor contact. The agency stated that even if it accepted complainant's claim that she did not become aware of the alleged discrimination until January 1998, her initial contact with an EEO Counselor would still be untimely. With regard to complainant's claim that she sent a certified letter to the agency on February 4, 1998, the agency argued that this letter was not sent to or received by the EEO office and therefore did not constitute a timely request to begin the EEO process. The agency stated that complainant called the EEO office on February 4, 1998, requesting documents, however, it noted that she did not mention she was seeking counseling at this time. Finally, the agency dismissed claim (2), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The agency stated that complainant's doctor recommended early retirement for complainant in January 1997 and noted that complainant was and still is unable to work at all due to her disability. Thus, the agency claimed that due to her inability to work, complainant would be ineligible for any back pay or change to a later retirement date. On appeal, complainant argues that she raised the reasonable accommodation issue with the EEO office in 1996. With regard to issue (2), complainant states that she did not become aware of the alleged discrimination until January 1998, and then timely initiated contact with the EEO office on February 4, 1998. Complainant stated that on February 4, 1998, she sent a letter addressed to the Legal Department which contained a Privacy Act/Freedom of Information Act request. Complainant claims that this letter was addressed to EEO or EAP. Complainant states that she wanted her letter to start with the Legal Department and claims that she thought legal would read it over and decide where it should go or both places. So later I wouldn't have erroneously put all my eggs in one basket say with just EEO if EAP was also an option. Complainant also states that she called the EEO office on February 4, 1998, to confirm the time limit for filing an EEO complaint and argues that this evidences her intent to initiate the EEO counseling process. The record contains a copy of the EEO Counselor's report which details complainant's various contacts with the EEO office. The counselor's report shows that complainant met with an EEO Counselor on May 20, 1996, regarding the May 10, 1996 memo which denied complainant's request for a reduced work schedule. According to the counselor's report and affidavits from EEO staff, complainant met with or called the EEO office more than a dozen times between May 20, 1996 and September 3, 1996, regarding her request for a reasonable accommodation. Both the counselor's report and the affidavits state that complainant did not exhibit an intent to initiate the counseling process prior to July 6, 1998. In addition, the record contains an email dated June 18, 1996, in which the EEO Counselor informed complainant that she has 45 days from the time of an incident' to the time you file a complaint. Finally, the record contains a letter dated February 4, 1998, with a heading that is addressed to: Portsmouth Naval Shipyard/EAP (or EEO). The signed certified return receipt indicates, however, that the Portsmouth Naval Shipyard/Legal Office received a letter from complainant on February 9, 1998. The February 4, 1998 letter provided by complainant references a discrimination complaint and a Privacy Act/FOIA request. In the letter, complainant requests an appointment to file a discrimination complaint and states that she intends for this letter to meet the 45 day deadline requirement. At the close of the letter, complainant requests documents from the Legal Office pursuant to the Privacy Act. The record reveals that neither the Legal Office, the EAP, nor the EEO Office have possession of the original February 4, 1998 letter complainant claims she sent or recalls receiving the letter contained in the record. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Upon review of the record, we find that the agency properly dismissed complainant's complaint for untimely EEO Counselor contact. With regard to issue (1), we find that complainant was aware of the applicable limitation period for initiating EEO Counselor contact as early as June 18, 1996, however, she failed to exhibit an intent to begin the EEO process until July 1998. With regard to issue (2), we find that even if complainant did not reasonably suspect discrimination until January 1998, her counselor contact was still untimely. Specifically, we find that complainant was aware of the proper procedures for timely initiating EEO contact and in fact had been in contact with the EEO office throughout the last year of her employment. Thus, complainant knew the relevant time period and the proper location to commence the EEO process. Furthermore, we note that neither the EAP, the EEO Office, nor the Legal Office received the February 4, 1998 letter complainant claims to have sent. In addition, although complainant spoke with a counselor on February 4, 1998, at this time she did not exhibit any intent to proceed with the process. Complainant did not speak with a counselor again until July 6, 1998. Final Decision: Accordingly, the Commission finds that he did not establish EEO Counselor contact for timeliness purposes until July 6, 1998. Accordingly, the agency's decision to dismiss complainant's complaint was proper and is AFFIRMED.	Lorraine Menard v. Department of the Navy 01990626 January 5, 2001 . Lorraine Menard, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency. Appeal No. 01990626 Agency No. 98-00102-009 DECISION Complainant filed a timely appeal with this Commission from an agency decision dated October 1, 1998, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. In her complaint, complainant alleged that she was subjected to discrimination on the basis of disability (chronic fatigue syndrome) when: Complainant's request for a reduced work schedule using leave without pay was denied in a May 10, 1996 memo which directed her to report to work on a full time basis in six weeks; and Complainant took early retirement on January 3, 1997. The agency dismissed complainant's complaint pursuant to the regulation set forth at 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. With regard to issue (1), the agency stated that complainant did not initiate contact with an EEO Counselor until July 6, 1998, which is beyond the applicable forty-five (45) day limitation period for timely contact. In addition, the agency stated that even if complainant's February 4, 1998 letter was received by the agency and constituted a request for counseling, such a request would still be untimely. Specifically, the agency noted that complainant was aware of the time limit for counselor contact as early as June 18, 1996, when she received a certified email from an EEO Counselor informing her of the applicable forty-five (45) day limitation period. Similarly, the agency dismissed issue (2), for untimely EEO Counselor contact. The agency stated that even if it accepted complainant's claim that she did not become aware of the alleged discrimination until January 1998, her initial contact with an EEO Counselor would still be untimely. With regard to complainant's claim that she sent a certified letter to the agency on February 4, 1998, the agency argued that this letter was not sent to or received by the EEO office and therefore did not constitute a timely request to begin the EEO process. The agency stated that complainant called the EEO office on February 4, 1998, requesting documents, however, it noted that she did not mention she was seeking counseling at this time. Finally, the agency dismissed claim (2), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The agency stated that complainant's doctor recommended early retirement for complainant in January 1997 and noted that complainant was and still is unable to work at all due to her disability. Thus, the agency claimed that due to her inability to work, complainant would be ineligible for any back pay or change to a later retirement date. On appeal, complainant argues that she raised the reasonable accommodation issue with the EEO office in 1996. With regard to issue (2), complainant states that she did not become aware of the alleged discrimination until January 1998, and then timely initiated contact with the EEO office on February 4, 1998. Complainant stated that on February 4, 1998, she sent a letter addressed to the Legal Department which contained a Privacy Act/Freedom of Information Act request. Complainant claims that this letter was addressed to EEO or EAP. Complainant states that she wanted her letter to start with the Legal Department and claims that she thought legal would read it over and decide where it should go or both places. So later I wouldn't have erroneously put all my eggs in one basket say with just EEO if EAP was also an option. Complainant also states that she called the EEO office on February 4, 1998, to confirm the time limit for filing an EEO complaint and argues that this evidences her intent to initiate the EEO counseling process. The record contains a copy of the EEO Counselor's report which details complainant's various contacts with the EEO office. The counselor's report shows that complainant met with an EEO Counselor on May 20, 1996, regarding the May 10, 1996 memo which denied complainant's request for a reduced work schedule. According to the counselor's report and affidavits from EEO staff, complainant met with or called the EEO office more than a dozen times between May 20, 1996 and September 3, 1996, regarding her request for a reasonable accommodation. Both the counselor's report and the affidavits state that complainant did not exhibit an intent to initiate the counseling process prior to July 6, 1998. In addition, the record contains an email dated June 18, 1996, in which the EEO Counselor informed complainant that she has 45 days from the time of an incident' to the time you file a complaint. Finally, the record contains a letter dated February 4, 1998, with a heading that is addressed to: Portsmouth Naval Shipyard/EAP (or EEO). The signed certified return receipt indicates, however, that the Portsmouth Naval Shipyard/Legal Office received a letter from complainant on February 9, 1998. The February 4, 1998 letter provided by complainant references a discrimination complaint and a Privacy Act/FOIA request. In the letter, complainant requests an appointment to file a discrimination complaint and states that she intends for this letter to meet the 45 day deadline requirement. At the close of the letter, complainant requests documents from the Legal Office pursuant to the Privacy Act. The record reveals that neither the Legal Office, the EAP, nor the EEO Office have possession of the original February 4, 1998 letter complainant claims she sent or recalls receiving the letter contained in the record. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Upon review of the record, we find that the agency properly dismissed complainant's complaint for untimely EEO Counselor contact. With regard to issue (1), we find that complainant was aware of the applicable limitation period for initiating EEO Counselor contact as early as June 18, 1996, however, she failed to exhibit an intent to begin the EEO process until July 1998. With regard to issue (2), we find that even if complainant did not reasonably suspect discrimination until January 1998, her counselor contact was still untimely. Specifically, we find that complainant was aware of the proper procedures for timely initiating EEO contact and in fact had been in contact with the EEO office throughout the last year of her employment. Thus, complainant knew the relevant time period and the proper location to commence the EEO process. Furthermore, we note that neither the EAP, the EEO Office, nor the Legal Office received the February 4, 1998 letter complainant claims to have sent. In addition, although complainant spoke with a counselor on February 4, 1998, at this time she did not exhibit any intent to proceed with the process. Complainant did not speak with a counselor again until July 6, 1998. Accordingly, the Commission finds that he did not establish EEO Counselor contact for timeliness purposes until July 6, 1998. Accordingly, the agency's decision to dismiss complainant's complaint was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 January 5, 2001 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "29 U.S.C. § 791", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.06817200779914856, 0.039111990481615067, -0.04088905453681946, 0.08866435289382935, 0.043920230120420456, 0.1067647635936737, 0.052306823432445526, 0.027497056871652603, -0.10816729068756104, 0.031637534499168396, 0.022275475785136223, 0.028357135131955147, -0.023814406245946884, 0.0537...
47	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161731.txt	0120161731.txt	TXT	text/plain	12,291	Charlie O.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.	March 14, 2016	Appeal Number: 0120161731 Background: At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 1 serving the Agency as a Facilities Manager at its Program Executive Office Soldier Protection Individual Equipment (PEO-SPIE) organization in Fort Belvoir, Virginia. On March 7, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African-American) and reprisal for prior protected EEO activity under Title VII when he was terminated on October 27, 2015.2 The Agency dismissed the complaint, in relevant part, for failure to timely initiate EEO counseling. It reasoned that the termination occurred on October 27, 2015, but Complainant did not initiate EEO counseling until January 21, 2016, beyond the 45 calendar day time limit. On November 1, 2015, Complainant sent an email to a Colonial - the Agency Project Manager for PEO-SPIE - an upper level supervisor. Therein, Complainant wrote that in a meeting on October 27, 2015, he was informed by his Staffing Firm 1 supervisor and the lead for Staffing Firm 2, which was succeeding Staffing Firm 1, that he would not be moved to Staffing Firm 2, meaning he was terminated. Complainant wrote that he believed his release occurred because of his negative relationship with his government supervisor - the Director of Operation, PEO-SPIE, who he described as a micro-manager. Complainant wrote that he lost respect for his government supervisor as a leader when (on September 9, 2015) he overheard him, in complaining about the PEO-SPIE Chief of Operations and Plans (Black) and the PEO-SPIE Commander (Black) sending negative emails to the command level, angrily say "if they were under his command he would have them both fired and that he would take them both out [in] front of the building and have them strung up." Complainant wrote that he reported the comment to the Chief of Operations and Plans. Complainant concluded that if his government supervisor felt that way about them, he could only surmise he felt the same way about him. He asked that someone provide a reason for his termination.3 On November 4, 2015, Complainant forwarded his November 1, 2015, email to the PEO Soldier Chief, Personnel/Victim Advocate (Contact 1) with the message "[Contact 1] I'm forwarding this letter in hopes that this treatment does not happen to anyone else." On the same day, Contact 1 forwarded Complainant's email to the PEO Chief of Staff, asking if he could give her a call to discuss. Thereafter, on January 19, 2016, Complainant emailed Contact 1 regarding his November 4, 2015 email which he described as concerning his termination which was influenced by his government supervisor as a form of retaliation. Complainant wrote that he was contacting her to make a formal complaint in her role as PEO equal opportunity advocate. He wrote that he believed the AR 15-6 investigation was completed, and he wanted a formal interview with her to discuss the matters mentioned and the results of both internal and formal investigations. Interpreting this as a request to enter the EEO process, Contact 1 replied to Complainant on January 20, 2016, that she was not the correct person with whom to file a formal EEO complaint, and gave contact information for doing so. In her signature block, Contact 1 included the phrase "Victim Advocate/EEO Representative." On January 21, 2016, Complainant initiated contact with the EEO office. On appeal Complainant argues, by and through counsel, that he should be deemed to have timely initiated EEO contact on November 4, 2015, the date he sent the email to Contact 1, who has identified herself as an EEO Representative. He argues that Contact 1 is logically connected to the EEO process, and in his November 4, 2015, email, which included his November 1, 2015, email, he exhibited intent to begin the EEO process. In opposition to the appeal, the Agency argues that Contact 1 is not logically connected to the EEO office, and Complainant did not exhibit intent to enter into the EEO process until his January 19, 2016, email to her. The Agency submits a declaration by Contact 1. She writes that her title is Chief of Personnel, and she also functions as the Victim Advocate for the Sexual Harassment/Assault Response & Prevention. Contact 1 writes that she is not an EEO counselor and does not hold a role in the EEO process. She writes that she first added the phrase "EEO Representative" to her signature block in December 2015, when she was preparing a presentation on PEO Soldier Supervisor Training on Inappropriate Conduct, and at the presentation for supervisors in January 2016, she shared that if an employee had an EEO issue or concern, she could provide contact information for EEO. She writes that the phrase "EEO Representative" in her signature block is only used to give people a single point of contact from whom to obtain information, and if someone has questions about EEO issues, she provides the Fort Belvoir EEO office contact information and a copy of the EEO portion of her briefing which contains contact information and a flyer from the EEO office. Contact 1 wrote that she did not send any correspondence to Complainant listing herself as an "EEO Representative" until January 20, 2016.	Charlie O.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120161731 Agency No. ARBELVOIR116JAN00832 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 14, 2016, dismissing his 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 worked for Staffing Firm 1 serving the Agency as a Facilities Manager at its Program Executive Office Soldier Protection Individual Equipment (PEO-SPIE) organization in Fort Belvoir, Virginia. On March 7, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African-American) and reprisal for prior protected EEO activity under Title VII when he was terminated on October 27, 2015.2 The Agency dismissed the complaint, in relevant part, for failure to timely initiate EEO counseling. It reasoned that the termination occurred on October 27, 2015, but Complainant did not initiate EEO counseling until January 21, 2016, beyond the 45 calendar day time limit. On November 1, 2015, Complainant sent an email to a Colonial - the Agency Project Manager for PEO-SPIE - an upper level supervisor. Therein, Complainant wrote that in a meeting on October 27, 2015, he was informed by his Staffing Firm 1 supervisor and the lead for Staffing Firm 2, which was succeeding Staffing Firm 1, that he would not be moved to Staffing Firm 2, meaning he was terminated. Complainant wrote that he believed his release occurred because of his negative relationship with his government supervisor - the Director of Operation, PEO-SPIE, who he described as a micro-manager. Complainant wrote that he lost respect for his government supervisor as a leader when (on September 9, 2015) he overheard him, in complaining about the PEO-SPIE Chief of Operations and Plans (Black) and the PEO-SPIE Commander (Black) sending negative emails to the command level, angrily say "if they were under his command he would have them both fired and that he would take them both out [in] front of the building and have them strung up." Complainant wrote that he reported the comment to the Chief of Operations and Plans. Complainant concluded that if his government supervisor felt that way about them, he could only surmise he felt the same way about him. He asked that someone provide a reason for his termination.3 On November 4, 2015, Complainant forwarded his November 1, 2015, email to the PEO Soldier Chief, Personnel/Victim Advocate (Contact 1) with the message "[Contact 1] I'm forwarding this letter in hopes that this treatment does not happen to anyone else." On the same day, Contact 1 forwarded Complainant's email to the PEO Chief of Staff, asking if he could give her a call to discuss. Thereafter, on January 19, 2016, Complainant emailed Contact 1 regarding his November 4, 2015 email which he described as concerning his termination which was influenced by his government supervisor as a form of retaliation. Complainant wrote that he was contacting her to make a formal complaint in her role as PEO equal opportunity advocate. He wrote that he believed the AR 15-6 investigation was completed, and he wanted a formal interview with her to discuss the matters mentioned and the results of both internal and formal investigations. Interpreting this as a request to enter the EEO process, Contact 1 replied to Complainant on January 20, 2016, that she was not the correct person with whom to file a formal EEO complaint, and gave contact information for doing so. In her signature block, Contact 1 included the phrase "Victim Advocate/EEO Representative." On January 21, 2016, Complainant initiated contact with the EEO office. On appeal Complainant argues, by and through counsel, that he should be deemed to have timely initiated EEO contact on November 4, 2015, the date he sent the email to Contact 1, who has identified herself as an EEO Representative. He argues that Contact 1 is logically connected to the EEO process, and in his November 4, 2015, email, which included his November 1, 2015, email, he exhibited intent to begin the EEO process. In opposition to the appeal, the Agency argues that Contact 1 is not logically connected to the EEO office, and Complainant did not exhibit intent to enter into the EEO process until his January 19, 2016, email to her. The Agency submits a declaration by Contact 1. She writes that her title is Chief of Personnel, and she also functions as the Victim Advocate for the Sexual Harassment/Assault Response & Prevention. Contact 1 writes that she is not an EEO counselor and does not hold a role in the EEO process. She writes that she first added the phrase "EEO Representative" to her signature block in December 2015, when she was preparing a presentation on PEO Soldier Supervisor Training on Inappropriate Conduct, and at the presentation for supervisors in January 2016, she shared that if an employee had an EEO issue or concern, she could provide contact information for EEO. She writes that the phrase "EEO Representative" in her signature block is only used to give people a single point of contact from whom to obtain information, and if someone has questions about EEO issues, she provides the Fort Belvoir EEO office contact information and a copy of the EEO portion of her briefing which contains contact information and a flyer from the EEO office. Contact 1 wrote that she did not send any correspondence to Complainant listing herself as an "EEO Representative" until January 20, 2016. ANALYSIS AND FINDINGS Generally, a complainant must contact an EEO Counselor within 45 days of the alleged discrimination event. 29 C.F.R. § 1614.105(a)(1). To establish EEO contact, a complainant must contact an official logically connected to the EEO process, and exhibit intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). By January 19, 2016, Complainant believed that that Contact 1 served as the PEO equal opportunity advocate - as evidenced by his writing in his email to her that date that he was contacting her to make a "formal complaint ...as the PEO equal opportunity advocate." We need not decide whether Contact 1, by November 2015, held herself out (or appearing to do so) as a management official affiliated with the EEO office, and hence should be deemed as being logically connected to the EEO office. We find that in his November 4, 2015, email to Contact 1, Complainant did not exhibit intent to begin the EEO process. Instead, he simply wrote that he was forwarding his November 1, 2015, email to the Colonial to her in hopes that this treatment does not occur to anyone else. By the time Complainant arguably exhibited intent on January 19, 2016, the 45 calendar day time limit to initiate EEO counseling already passed. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 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 July 19, 2016 __________________ Date 2 The Agency also defined the complaint as alleging an incident of reprisal on September 9, 2015, and dismissed this claim. A reading of the complaint, along with Complainant's arguments on appeal, reveals that Complainant did not allege an incident of reprisal discrimination occurred on September 9, 2015. Rather, he alleged that as a result of his opposition to a racist statement he overheard his government supervisor make that day, the Agency retaliated against him by later terminating his employment. In opposition to Complainant's appeal, the Agency clarifies that it did separately dismiss the reprisal basis of the termination claim - rather this entire claim was dismissed for untimeliness. Agency opposition brief, at 11. 3 The Colonial referred Complainant's report to him about his government supervisor's comment for an AR "15-6" investigation, which he relayed to the EEO counselor was still pending. ------------------------------------------------------------ ------------------------------------------------------------	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.11758411675691605, 0.053116973489522934, -0.01723332889378071, 0.020235512405633926, -0.006676941178739071, 0.057881105691194534, 0.05997703969478607, -0.03355301916599274, -0.028823161497712135, 0.025023937225341797, 0.04934956878423691, -0.021290665492415428, 0.023050375282764435, -0....
48	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093132.txt	0120093132.txt	TXT	text/plain	28,343	Mohsen M. Bastawros, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.	July 23, 2009	Appeal Number: 0120093132 Complaint Allegations: in his complaint. He writes that claim 15 is to demonstrate that he was denied his request to get an independent evaluator to review each applicant for the job vacancies. He writes that claims 17, 18, 19, 21 and 22 demonstrate discrimination by the EEO office by not offering the normal EEO and investigative process. Complainant argues that the Agency omitted parts of his complaint, but does not identify missed claims. In opposition to the appeal, the Agency argues that Complainant knew or should have known of the 45 calendar day time limit to initiate EEO counseling. It submits an October 2009, affidavit by the Division Chief that Complainant worked in Building 65, a single level structure, since 1989, and that there was an EEO poster 11 inches by 16 inches on colored paper posted in the main entrance of Building 65 for over five years. He submits a copy of the poster, which gives the 45 calendar day time limit and the contact information of EEO counselors. The Division Chief wrote that there were five other EEO posters in Building 65 for the last five years, i.e., rear and front Building 65 North entrances; Building 65 South rear entrance, in the hallway, and at the Building 65 South front entrance. He wrote that in approximately early 2009, the EEO posters at the Building 65 South rear, South front, and hallway were removed for renovations, but will be replaced. The Agency argues that while Complainant contended on claims 1 through 6 that he became aware of the alleged discrimination on October 22, 2008, it was actually much earlier. The Agency argues this is supported by Complainant's writings, i.e., on claim 1 he wrote that at the end of November 2007, his supervisor explained "they were looking for young blood," and on claim 2 Complainant wrote his supervisor in January 2008 told him "you don't want that training job," and on claims 3 and 4 he wrote those selected were "young engineers." The Agency argues that claim 20 actually regards the matter in claim 5, and hence is also untimely. It argues that there is no continuing violation because the above claims are discrete actions. The Agency argues that claims 8, 13, 14 and 16 are moot because they concern assignments in Complainant's former position under his former supervisor, and he subsequently agreed to a reassignment in a mediation session which did not result in a settlement agreement. It argues that any alleged harm has been eradicated, and that Complainant suffered no loss in pay or benefits as a result of the assignment matters. The Agency submits a declaration by the Division Chief stating that none of the denied assignments would have resulted in any pay or benefit increase. The Agency also argues that claims 13, 14 and 16 should be dismissed because they were not brought to the attention of an EEO counselor and were untimely raised in the EEO complaint. The Agency argues that claims 19, 21 and 22 should be dismissed for failure to state a claim because they are attacks on the EEO process. It argues that claims 7, 9, 10, 11, 12, 15, 17, 18 and 19 should be dismissed for failure to state a claim because they simply provide background information relative to other claims. The Agency maintains that it did not omit the definition of any claims. ANALYSIS AND FINDINGS Complainant does not oppose the Agency's dismissal of claim 10, explaining it was merely a factual statement. Accordingly, claim 10 is dismissed. We also find that his complaint has been properly defined. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he was not notified of the time limit and was not otherwise aware of it, or did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). It is the Commission's policy that constructive knowledge of the time limit will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). We find that the Division Chief's declaration meets the Agency's burden, and that Complainant had constructive notice of the 45 calendar day time limit. 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. We find that claims 1 through 6, and claim 20, actually regard five matters, i.e., in June 2008 not being selected for the PM-MAS assignment; in September 2007 not being selected to participate in the 1028 Program Source Selection assignment or job; on or about April 2, 2008, not being selected for YD-03, vacancy announcement NEBA07182902; in June or July 2008, not receiving credit for his work by his name not being added to a patent; and in July 2008 not being selected for the rotational position of YD-03 Tech Expert. We find that Complainant had a reasonable suspicion of discrimination long before initiating contact with an EEO counselor on November 19, 2008. In addition to the Agency's arguments which support this, on claims 1 and 2 Complainant wrote that he should have been selected because he had more experience, but the same young engineer was chosen. On claim 3 Complainant wrote that the candidates chosen for interviews were younger than him and not of his race and national origin, and on claim 6 he wrote that the selectee was only a GS-13 for a year or two and was a white American. Complainant had a reasonable suspicion of discrimination when these events occurred. We also find that claims 1 through 6, and claim 20 involve discrete events. As such, each event triggered a new clock for initiating EEO counseling. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 113 (2002). Accordingly, claims 1 through 6, and claim 20, are dismissed for failure to timely initiate EEO counseling. Claims 8, 13, 14 and 16 regard not being the lead or head for assignments, which Complainant suggested were significant assignments. The Agency dismissed these claims for being moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. While the assignments themselves did not involve an increase in pay or benefits, Complainant contends not having them resulted in lost opportunities for training and advancement, and suggested they were major assignments. As such, the Agency has not shown that Complainant's reassignment irrevocably eradicated the effect of the alleged discrimination. Further, the Commission has held that an Agency must address the issue of compensatory damages when a complainant shows objective evidence that he has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. United States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993). Because Complainant requested compensatory damages, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. United States Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal of the assignment claims for being rendered moot was improper. See Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999). Nevertheless, we find claim 14 should be dismissed for failure to state a claim of discrimination. 29 C.F.R. § 1614.107(a)(2). It is merely evidence to support discrimination occurred in claim 13, i.e., the supervisor saying he can choose whoever he wants. Background: At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer at the Agency's Picatinny Arsenal in New Jersey. He filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African), national origin (Arabic), age (not identified), and reprisal for prior protected EEO activity when: 1. at the end of November 2007, when he tried to find out from his supervisor why he was not selected for the PM-MAS assignment in June 2006 or similar assignments, his supervisor told him "they were looking for young blood"; 2. in January 2008, when he tried to find out from his supervisor why he was not selected in September 2007 to participate in the 1028 Program Source Selection, his supervisor told him "you don't want that training job"; 3. on February 27, 2008, the eventual selectees for YD-03, vacancy announcement NEBA07182902, were notified by email they were scheduled for second interviews, but not Complainant; 4. on April 2, 2008, the selectees for the above position (three slots) were announced, and Complainant was not selected; 5. in June and July 2008, Complainant's supervisor denied him credit for his work by refusing to add Complainant's name to a patent, even though Complainant spoke to him three times; 6. in July 2008 the selectees were announced for the rotational position of Acting YD-03 Tech Expert (two people, three months each), and when Complainant asked his supervisor in July 2008 why he was not considered, he replied "I did not know that you want to be doing this job"; 7. on October 24, 2008, Complainant was interviewed by a Resolution Division investigator as a witness in an EEO case, and when Complainant said he was concerned that management would retaliate against him, the investigator assured him he was safe; 8. on October 28, 2008, he was retaliated against for being an EEO witness when he was notified that he would no longer be the MRM Propulsion IPT lead nor the Lethality IPT lead, and would eventually be taken off the program; 9. on November 18, 2008, he talked to an EEO Officer about claim 8 who opined that there was no reprisal occurred because Complainant was not demoted and did not lose his job; 10. on November 19, 2008, he was interviewed by an EEO counselor about claim 8, who gave advice on filing a formal complaint; 11. on November 7, 2008, when he told the EEO officer about claim 8, the EEO officer assured him it was confidential until the next step, but on November 21, 2008, the EEO officer informed Complainant he spoke with Complainant's supervisor and manager about claim 8; 12. Complainant had an interview with another EEO counselor who advised there would be no record of the meeting since he chose alternative dispute resolution (ADR); 13. on January 20, 2009, his supervisor assigned another individual to head a new two million dollar program, which denied Complainant training and the opportunity for advancement; 14. on January 22-23, 2009, when he asked his supervisor why he was not selected to head the project in claim 13, he replied that he "can choose whoever he wants for the project"; 15. on February 2, 2009, there was a mediation meeting with two Commissioners from the Federal Mediation & Conciliation Service, the EEO Officer, and the Division Chief; 16. on February 9, 2009, the Agency officially announced the head of the new program in claim 13, and the new MRM Cartridge IPT Lead for the MRM Program, denying Complainant training and advancement opportunities; 17. on April 8, 2009, the EEO officer asked Complainant to involve a specified union representative in the case and negotiation; 18. on April 14, 2009, the union representative met with the EEO officer and informed him of progress in reaching a negotiated settlement agreement; 19. on April 29, 2009, he met with his union representative, the EEO officer and the Division Chief in the latter's office, not in the EEO office as normal EEO procedure calls for; 20. on May 7, 2009, Complainant met with the EEO officer, the Division Chief and another individual to discuss claim 5; 21. on May 7, 2009, Complainant sent an email to the EEO officer questioning his reasons for involving the union representative and the Division Chief and calling the April 29, 2009, meeting in the Division Chief's office; he wanted a response in writing on whether standard/normal procedures were followed; and 22. he felt discriminated against regarding claim 19. On claims 1 through 6, Complainant wrote that he became aware of the discrimination after meeting with an Agency representative on October 22, 2008, and the Resolution Division investigator on October 24, 2008. Complainant did not state what occurred at these meetings that made him aware of the discrimination. The Agency dismissed claims 1 through 6 for failure to timely initiate EEO counseling. It reasoned that he initiated EEO contact on November 19, 2008, beyond the 45 calendar day time limit for these claims. The Agency dismissed claims 7, 9, 10, 11, 12, 15, 17, 18, and 19 for failure to state a claim. It reasoned they were background information where no claim was alleged. The Agency dismissed claim 8 for being moot. It reasoned that as a result of an ADR meeting [which did not result in a settlement agreement], effective March 2, 2009, Complainant agreed to be reassigned to another organization under another supervisor working on different programs. The Agency dismissed claims 13, 14, 16 and 20 for failure to bring them to the attention of an EEO counselor. The Agency dismissed claims 21 and 22 for failure to state a claim for being about the EEO investigative process. CONTENTIONS ON APPEAL Complainant writes that claim 10 was only a factual statement, and the Agency's dismissal of this claim was acceptable. He disputes the dismissal of the remaining claims. Regarding untimeliness, Complainant contends that he was not notified of the 45 calendar day time limit to initiate EEO counseling until he met with the EEO counselor on November 19, 2008. He writes that while the Agency wrote in the FAD that there was an EEO poster on the bulletin board at the entrance of the building, this was misleading because he works in the south end of Building 65, a secure area with its own entrance and exit. He contends that personnel in this area use the south end entrance and exit, and neither have an EEO poster with the time limit on the bulletin boards. Complainant also contends that claims 1 through 6 are part of a continuing violation involving claims 13, 14, 16 and 20. Complainant contends that claim 8 is not moot. He argues that he was tricked in ADR to accept a new position which is not appropriate for his level of experience. He writes that claim 9 regards the EEO Officer trying to suppress his claim. He writes that claim 12 is about the EEO office not following standard procedures. Complainant does not dispute that he did not raise claims 13, 14, 16 and 20 with an EEO counselor. He writes these claims demonstrate that he is subject to ongoing discrimination and argues they should be included in his complaint. He writes that claim 15 is to demonstrate that he was denied his request to get an independent evaluator to review each applicant for the job vacancies. He writes that claims 17, 18, 19, 21 and 22 demonstrate discrimination by the EEO office by not offering the normal EEO and investigative process. Complainant argues that the Agency omitted parts of his complaint, but does not identify missed claims. In opposition to the appeal, the Agency argues that Complainant knew or should have known of the 45 calendar day time limit to initiate EEO counseling. It submits an October 2009, affidavit by the Division Chief that Complainant worked in Building 65, a single level structure, since 1989, and that there was an EEO poster 11 inches by 16 inches on colored paper posted in the main entrance of Building 65 for over five years. He submits a copy of the poster, which gives the 45 calendar day time limit and the contact information of EEO counselors. The Division Chief wrote that there were five other EEO posters in Building 65 for the last five years, i.e., rear and front Building 65 North entrances; Building 65 South rear entrance, in the hallway, and at the Building 65 South front entrance. He wrote that in approximately early 2009, the EEO posters at the Building 65 South rear, South front, and hallway were removed for renovations, but will be replaced. The Agency argues that while Complainant contended on claims 1 through 6 that he became aware of the alleged discrimination on October 22, 2008, it was actually much earlier. The Agency argues this is supported by Complainant's writings, i.e., on claim 1 he wrote that at the end of November 2007, his supervisor explained "they were looking for young blood," and on claim 2 Complainant wrote his supervisor in January 2008 told him "you don't want that training job," and on claims 3 and 4 he wrote those selected were "young engineers." The Agency argues that claim 20 actually regards the matter in claim 5, and hence is also untimely. It argues that there is no continuing violation because the above claims are discrete actions. The Agency argues that claims 8, 13, 14 and 16 are moot because they concern assignments in Complainant's former position under his former supervisor, and he subsequently agreed to a reassignment in a mediation session which did not result in a settlement agreement. It argues that any alleged harm has been eradicated, and that Complainant suffered no loss in pay or benefits as a result of the assignment matters. The Agency submits a declaration by the Division Chief stating that none of the denied assignments would have resulted in any pay or benefit increase. The Agency also argues that claims 13, 14 and 16 should be dismissed because they were not brought to the attention of an EEO counselor and were untimely raised in the EEO complaint. The Agency argues that claims 19, 21 and 22 should be dismissed for failure to state a claim because they are attacks on the EEO process. It argues that claims 7, 9, 10, 11, 12, 15, 17, 18 and 19 should be dismissed for failure to state a claim because they simply provide background information relative to other claims. The Agency maintains that it did not omit the definition of any claims. Legal Analysis: the Commission's policy that constructive knowledge of the time limit will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). We find that the Division Chief's declaration meets the Agency's burden, and that Complainant had constructive notice of the 45 calendar day time limit. 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. We find that claims 1 through 6, and claim 20, actually regard five matters, i.e., in June 2008 not being selected for the PM-MAS assignment; in September 2007 not being selected to participate in the 1028 Program Source Selection assignment or job; on or about April 2, 2008, not being selected for YD-03, vacancy announcement NEBA07182902; in June or July 2008, not receiving credit for his work by his name not being added to a patent; and in July 2008 not being selected for the rotational position of YD-03 Tech Expert. We find that Complainant had a reasonable suspicion of discrimination long before initiating contact with an EEO counselor on November 19, 2008. In addition to the Agency's arguments which support this, on claims 1 and 2 Complainant wrote that he should have been selected because he had more experience, but the same young engineer was chosen. On claim 3 Complainant wrote that the candidates chosen for interviews were younger than him and not of his race and national origin, and on claim 6 he wrote that the selectee was only a GS-13 for a year or two and was a white American. Complainant had a reasonable suspicion of discrimination when these events occurred. We also find that claims 1 through 6, and claim 20 involve discrete events. As such, each event triggered a new clock for initiating EEO counseling. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 113 (2002). Final Decision: Accordingly, claim 10 is dismissed. We also find that his complaint has been properly defined. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he was not notified of the time limit and was not otherwise aware of it, or did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). It is the Commission's policy that constructive knowledge of the time limit will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). We find that the Division Chief's declaration meets the Agency's burden, and that Complainant had constructive notice of the 45 calendar day time limit. 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. We find that claims 1 through 6, and claim 20, actually regard five matters, i.e., in June 2008 not being selected for the PM-MAS assignment; in September 2007 not being selected to participate in the 1028 Program Source Selection assignment or job; on or about April 2, 2008, not being selected for YD-03, vacancy announcement NEBA07182902; in June or July 2008, not receiving credit for his work by his name not being added to a patent; and in July 2008 not being selected for the rotational position of YD-03 Tech Expert. We find that Complainant had a reasonable suspicion of discrimination long before initiating contact with an EEO counselor on November 19, 2008. In addition to the Agency's arguments which support this, on claims 1 and 2 Complainant wrote that he should have been selected because he had more experience, but the same young engineer was chosen. On claim 3 Complainant wrote that the candidates chosen for interviews were younger than him and not of his race and national origin, and on claim 6 he wrote that the selectee was only a GS-13 for a year or two and was a white American. Complainant had a reasonable suspicion of discrimination when these events occurred. We also find that claims 1 through 6, and claim 20 involve discrete events. As such, each event triggered a new clock for initiating EEO counseling. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 113 (2002). Accordingly, claims 1 through 6, and claim 20, are dismissed for failure to timely initiate EEO counseling. Claims 8, 13, 14 and 16 regard not being the lead or head for assignments, which Complainant suggested were significant assignments. The Agency dismissed these claims for being moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. While the assignments themselves did not involve an increase in pay or benefits, Complainant contends not having them resulted in lost opportunities for training and advancement, and suggested they were major assignments. As such, the Agency has not shown that Complainant's reassignment irrevocably eradicated the effect of the alleged discrimination. Further, the Commission has held that an Agency must address the issue of compensatory damages when a complainant shows objective evidence that he has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. United States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993). Because Complainant requested compensatory damages, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. United States Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal of the assignment claims for being rendered moot was improper. See Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999). Nevertheless, we find claim 14 should be dismissed for failure to state a claim of discrimination. 29 C.F.R. § 1614.107(a)(2). It is merely evidence to support discrimination occurred in claim 13, i.e., the supervisor saying he can choose whoever he wants. The Agency also, in relevant part, dismissed that claims 13 and 16 because they were not brought to the attention of an EEO counselor, and argues they were untimely raised in the EEO complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. We find that claims 13 and 16 are like and related to claim 8, i.e., losing the lead role in major assignments. Accordingly, the Agency's dismissal of these claims is reversed.	Mohsen M. Bastawros, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120093132 Agency No. ARPICAT0NOV05379 DECISION On July 23, 2009, Complainant filed a timely appeal with this Commission a final Agency decision (FAD) dated June 26, 2009, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer at the Agency's Picatinny Arsenal in New Jersey. He filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African), national origin (Arabic), age (not identified), and reprisal for prior protected EEO activity when: 1. at the end of November 2007, when he tried to find out from his supervisor why he was not selected for the PM-MAS assignment in June 2006 or similar assignments, his supervisor told him "they were looking for young blood"; 2. in January 2008, when he tried to find out from his supervisor why he was not selected in September 2007 to participate in the 1028 Program Source Selection, his supervisor told him "you don't want that training job"; 3. on February 27, 2008, the eventual selectees for YD-03, vacancy announcement NEBA07182902, were notified by email they were scheduled for second interviews, but not Complainant; 4. on April 2, 2008, the selectees for the above position (three slots) were announced, and Complainant was not selected; 5. in June and July 2008, Complainant's supervisor denied him credit for his work by refusing to add Complainant's name to a patent, even though Complainant spoke to him three times; 6. in July 2008 the selectees were announced for the rotational position of Acting YD-03 Tech Expert (two people, three months each), and when Complainant asked his supervisor in July 2008 why he was not considered, he replied "I did not know that you want to be doing this job"; 7. on October 24, 2008, Complainant was interviewed by a Resolution Division investigator as a witness in an EEO case, and when Complainant said he was concerned that management would retaliate against him, the investigator assured him he was safe; 8. on October 28, 2008, he was retaliated against for being an EEO witness when he was notified that he would no longer be the MRM Propulsion IPT lead nor the Lethality IPT lead, and would eventually be taken off the program; 9. on November 18, 2008, he talked to an EEO Officer about claim 8 who opined that there was no reprisal occurred because Complainant was not demoted and did not lose his job; 10. on November 19, 2008, he was interviewed by an EEO counselor about claim 8, who gave advice on filing a formal complaint; 11. on November 7, 2008, when he told the EEO officer about claim 8, the EEO officer assured him it was confidential until the next step, but on November 21, 2008, the EEO officer informed Complainant he spoke with Complainant's supervisor and manager about claim 8; 12. Complainant had an interview with another EEO counselor who advised there would be no record of the meeting since he chose alternative dispute resolution (ADR); 13. on January 20, 2009, his supervisor assigned another individual to head a new two million dollar program, which denied Complainant training and the opportunity for advancement; 14. on January 22-23, 2009, when he asked his supervisor why he was not selected to head the project in claim 13, he replied that he "can choose whoever he wants for the project"; 15. on February 2, 2009, there was a mediation meeting with two Commissioners from the Federal Mediation & Conciliation Service, the EEO Officer, and the Division Chief; 16. on February 9, 2009, the Agency officially announced the head of the new program in claim 13, and the new MRM Cartridge IPT Lead for the MRM Program, denying Complainant training and advancement opportunities; 17. on April 8, 2009, the EEO officer asked Complainant to involve a specified union representative in the case and negotiation; 18. on April 14, 2009, the union representative met with the EEO officer and informed him of progress in reaching a negotiated settlement agreement; 19. on April 29, 2009, he met with his union representative, the EEO officer and the Division Chief in the latter's office, not in the EEO office as normal EEO procedure calls for; 20. on May 7, 2009, Complainant met with the EEO officer, the Division Chief and another individual to discuss claim 5; 21. on May 7, 2009, Complainant sent an email to the EEO officer questioning his reasons for involving the union representative and the Division Chief and calling the April 29, 2009, meeting in the Division Chief's office; he wanted a response in writing on whether standard/normal procedures were followed; and 22. he felt discriminated against regarding claim 19. On claims 1 through 6, Complainant wrote that he became aware of the discrimination after meeting with an Agency representative on October 22, 2008, and the Resolution Division investigator on October 24, 2008. Complainant did not state what occurred at these meetings that made him aware of the discrimination. The Agency dismissed claims 1 through 6 for failure to timely initiate EEO counseling. It reasoned that he initiated EEO contact on November 19, 2008, beyond the 45 calendar day time limit for these claims. The Agency dismissed claims 7, 9, 10, 11, 12, 15, 17, 18, and 19 for failure to state a claim. It reasoned they were background information where no claim was alleged. The Agency dismissed claim 8 for being moot. It reasoned that as a result of an ADR meeting [which did not result in a settlement agreement], effective March 2, 2009, Complainant agreed to be reassigned to another organization under another supervisor working on different programs. The Agency dismissed claims 13, 14, 16 and 20 for failure to bring them to the attention of an EEO counselor. The Agency dismissed claims 21 and 22 for failure to state a claim for being about the EEO investigative process. CONTENTIONS ON APPEAL Complainant writes that claim 10 was only a factual statement, and the Agency's dismissal of this claim was acceptable. He disputes the dismissal of the remaining claims. Regarding untimeliness, Complainant contends that he was not notified of the 45 calendar day time limit to initiate EEO counseling until he met with the EEO counselor on November 19, 2008. He writes that while the Agency wrote in the FAD that there was an EEO poster on the bulletin board at the entrance of the building, this was misleading because he works in the south end of Building 65, a secure area with its own entrance and exit. He contends that personnel in this area use the south end entrance and exit, and neither have an EEO poster with the time limit on the bulletin boards. Complainant also contends that claims 1 through 6 are part of a continuing violation involving claims 13, 14, 16 and 20. Complainant contends that claim 8 is not moot. He argues that he was tricked in ADR to accept a new position which is not appropriate for his level of experience. He writes that claim 9 regards the EEO Officer trying to suppress his claim. He writes that claim 12 is about the EEO office not following standard procedures. Complainant does not dispute that he did not raise claims 13, 14, 16 and 20 with an EEO counselor. He writes these claims demonstrate that he is subject to ongoing discrimination and argues they should be included in his complaint. He writes that claim 15 is to demonstrate that he was denied his request to get an independent evaluator to review each applicant for the job vacancies. He writes that claims 17, 18, 19, 21 and 22 demonstrate discrimination by the EEO office by not offering the normal EEO and investigative process. Complainant argues that the Agency omitted parts of his complaint, but does not identify missed claims. In opposition to the appeal, the Agency argues that Complainant knew or should have known of the 45 calendar day time limit to initiate EEO counseling. It submits an October 2009, affidavit by the Division Chief that Complainant worked in Building 65, a single level structure, since 1989, and that there was an EEO poster 11 inches by 16 inches on colored paper posted in the main entrance of Building 65 for over five years. He submits a copy of the poster, which gives the 45 calendar day time limit and the contact information of EEO counselors. The Division Chief wrote that there were five other EEO posters in Building 65 for the last five years, i.e., rear and front Building 65 North entrances; Building 65 South rear entrance, in the hallway, and at the Building 65 South front entrance. He wrote that in approximately early 2009, the EEO posters at the Building 65 South rear, South front, and hallway were removed for renovations, but will be replaced. The Agency argues that while Complainant contended on claims 1 through 6 that he became aware of the alleged discrimination on October 22, 2008, it was actually much earlier. The Agency argues this is supported by Complainant's writings, i.e., on claim 1 he wrote that at the end of November 2007, his supervisor explained "they were looking for young blood," and on claim 2 Complainant wrote his supervisor in January 2008 told him "you don't want that training job," and on claims 3 and 4 he wrote those selected were "young engineers." The Agency argues that claim 20 actually regards the matter in claim 5, and hence is also untimely. It argues that there is no continuing violation because the above claims are discrete actions. The Agency argues that claims 8, 13, 14 and 16 are moot because they concern assignments in Complainant's former position under his former supervisor, and he subsequently agreed to a reassignment in a mediation session which did not result in a settlement agreement. It argues that any alleged harm has been eradicated, and that Complainant suffered no loss in pay or benefits as a result of the assignment matters. The Agency submits a declaration by the Division Chief stating that none of the denied assignments would have resulted in any pay or benefit increase. The Agency also argues that claims 13, 14 and 16 should be dismissed because they were not brought to the attention of an EEO counselor and were untimely raised in the EEO complaint. The Agency argues that claims 19, 21 and 22 should be dismissed for failure to state a claim because they are attacks on the EEO process. It argues that claims 7, 9, 10, 11, 12, 15, 17, 18 and 19 should be dismissed for failure to state a claim because they simply provide background information relative to other claims. The Agency maintains that it did not omit the definition of any claims. ANALYSIS AND FINDINGS Complainant does not oppose the Agency's dismissal of claim 10, explaining it was merely a factual statement. Accordingly, claim 10 is dismissed. We also find that his complaint has been properly defined. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he was not notified of the time limit and was not otherwise aware of it, or did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). It is the Commission's policy that constructive knowledge of the time limit will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). We find that the Division Chief's declaration meets the Agency's burden, and that Complainant had constructive notice of the 45 calendar day time limit. 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. We find that claims 1 through 6, and claim 20, actually regard five matters, i.e., in June 2008 not being selected for the PM-MAS assignment; in September 2007 not being selected to participate in the 1028 Program Source Selection assignment or job; on or about April 2, 2008, not being selected for YD-03, vacancy announcement NEBA07182902; in June or July 2008, not receiving credit for his work by his name not being added to a patent; and in July 2008 not being selected for the rotational position of YD-03 Tech Expert. We find that Complainant had a reasonable suspicion of discrimination long before initiating contact with an EEO counselor on November 19, 2008. In addition to the Agency's arguments which support this, on claims 1 and 2 Complainant wrote that he should have been selected because he had more experience, but the same young engineer was chosen. On claim 3 Complainant wrote that the candidates chosen for interviews were younger than him and not of his race and national origin, and on claim 6 he wrote that the selectee was only a GS-13 for a year or two and was a white American. Complainant had a reasonable suspicion of discrimination when these events occurred. We also find that claims 1 through 6, and claim 20 involve discrete events. As such, each event triggered a new clock for initiating EEO counseling. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 113 (2002). Accordingly, claims 1 through 6, and claim 20, are dismissed for failure to timely initiate EEO counseling. Claims 8, 13, 14 and 16 regard not being the lead or head for assignments, which Complainant suggested were significant assignments. The Agency dismissed these claims for being moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. While the assignments themselves did not involve an increase in pay or benefits, Complainant contends not having them resulted in lost opportunities for training and advancement, and suggested they were major assignments. As such, the Agency has not shown that Complainant's reassignment irrevocably eradicated the effect of the alleged discrimination. Further, the Commission has held that an Agency must address the issue of compensatory damages when a complainant shows objective evidence that he has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. United States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993). Because Complainant requested compensatory damages, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. United States Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal of the assignment claims for being rendered moot was improper. See Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999). Nevertheless, we find claim 14 should be dismissed for failure to state a claim of discrimination. 29 C.F.R. § 1614.107(a)(2). It is merely evidence to support discrimination occurred in claim 13, i.e., the supervisor saying he can choose whoever he wants. The Agency also, in relevant part, dismissed that claims 13 and 16 because they were not brought to the attention of an EEO counselor, and argues they were untimely raised in the EEO complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. We find that claims 13 and 16 are like and related to claim 8, i.e., losing the lead role in major assignments. Accordingly, the Agency's dismissal of these claims is reversed. In summary, the Agency's dismissal of claims 8, 13 and 16 is reversed; claim 14 fails to state a claim. The Agency dismissed claims 7, 9, 11, 12, 15, 17, 18, and 19 for failure to state a claim. It reasoned they were background information where no claim was alleged. It dismissed claims 21 and 22 for failure to state a claim because they were about the EEO investigative process. All these claims regard the processing of EEO claims by EEO officials or EEO investigators. EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides for the dismissal of complaints that allege dissatisfaction with the processing of a previously filed complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 5-25 to 5-26 (Nov. 9, 1999) provides that if a Complainant is dissatisfied with the processing of his pending complaint, whether or not it alleges prohibited discrimination as a basis for the dissatisfaction, he should be referred to the agency official responsible for the quality of complaints processing. It provides that agency officials should earnestly attempt to resolve dissatisfaction with the complaints process as early and expeditiously as possible. The EEO MD-110 states that the agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the agency's reason(s) for not taking any action. EEO MD-110 states that a complainant must always raise his concerns first with the agency, in the above manner. It provides that where the complainant's concerns have not been resolved informally by the agency, the complainant may present those concerns to the EEOC at the hearings or appellate stages. Claims 7, 9, 11, 12, 15, 17, 18, 19, 21 and 22 are dismissed for alleging dissatisfaction with the EEO process. 29 C.F.R. § 1614.107(a)(8). We decline to refer claims 7, 12, 15, 17, 18, 19, 21 and 22 to the Agency official responsible for the quality of complaints processing because these claims, on their face, do not indicate improper processing. While the EEO officer's action in claim 9 may not have been appropriate, it did not adversely impact the processing of Complainant's complaint, and hence we will not refer this matter back the Agency. Claim 11, however, alleges a breach of confidentiality by the EEO officer prior to the filing of the formal complaint, and hence will be referred to the Agency for appropriate action. CONCLUSION Claims 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 14, 15, 17, 18, 19, 20, 21, and 22 are DISMISSED. Claims 8, 11, 13, and 16 are remanded in accordance with the order below. ORDER The Agency is ordered to process claims 8, 13 and 16 in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received claims 8, 13 and 16 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. The Agency shall refer claim 11 to the Agency official responsible for the quality of complaints processing and process it in accordance with EEO MD-110, 5-25 to 5-26. 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, as well as evidence that the Agency has processed claim 11 as ordered, 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 March 30, 2011 __________________ Date	[ "Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998)", "Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (N...	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49	https://www.eeoc.gov/sites/default/files/decisions/2021_11_01/2021004001.pdf	2021004001.pdf	PDF	application/pdf	16,835	Tyson A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency.	July 7, 2021	Appeal Number: 2021004001 Background: During the relevant time, Complainant worked as a n EEO Counselor at the Agency’s United States Army Garrison in Okinawa, Japan. On September 24, 2019, Complainant filed a formal complaint, which he later amended, claiming that the Agency unlawfully ret aliated against him for his prior pr otected EEO activ ity when : a. In late January/February 2019, the EEO Manager contacted Collateral Duty EEO Counselors assigned to U.S. Army Garrison Okinawa, Japan, prior to making initial contact with Complainant. b. On o r about April 5, 2019, the EEO Manager instructed Complainant not to provide required sustainment training to Collateral Duty Counselors assigned to U.S. Garrison, Okinawa, Japan, which was done with the intent to undermine him in the workplace . c. On June 5, 2019, the EEO Manager directed Complainant to “coach” an inexperienced Collateral Duty EEO Counselor who had been assigned to process a pre-complaint that was 49 days old. d. On June 7, 2019, the EEO Manager falsely informed an EEO Assistant that Complaina nt deliberately hung up on her . e. On June 10, 2019, Complainant became aware the EEO Manager attempted to change his position description. f. On unspecified dates, EEO Manager 2 failed to select Complainant and failed to forward his multiple r equests to be ce rtified as a collateral duty EEO Counselor trainer . g. From June 4- 8, 2018, when EEO Manager 2 served as instructor for Department of Army EEO Counselor Certification Course, Tori Station, Okinawa, and declined to certify Complainant as a trainer . h. In early August 2018, Complainant applied for EEO Manager position, Vacancy Announcem ent Number FEFC180190350214, Control Number 507506800, open from August 8- 20, 2018 on USDJOBS website; the vacancy was withdrawn and posted within days , requiring Complainant to re -apply for the position a second time . i. On or around November 6, 2018, EEO Manager 2 interfered in the hiring process for Vacancy Number FEFC 1801903508269, resulting in the Complainant’s non-selection for the position. j. In late 2018/early 2019, the Colone l did not select Complainant for EEO Manager position, Vacancy Announcement Number FEFC1801903508269, Control Number 509515000. k. On July 10, 2019, EEO Manager 2 blamed Complainant for failure to issue a Collateral Duty Counselor a certificate of completion (delayed by more than one year), although Complainant had followed up with EEO Manager 2 about the matter several times . l. On August 19, 2019, EEO Manager 2 contacted the IMCOM EEO official, and other U.S. Gar rison Okinawa, Japan employees, regarding Compl ainant’s attendance to the Fede ral Dispute Resolution Conference (FDR) in Philadelphia, Pennsylvania, conducted August 12- 19, 2019. m. From November 14, 2019 to present, EEO Manager 2 used his influence to manipulate Agency Officials in the appointment/non- appointment of an Acting EEO Manager for USAG Japan and interfered with communications between the USAG Japan and USAG Okinawa EEO offices . n. On November 14, 2019, EEO Manager 2 accused Complainant of not doing his “due diligence” in ensuring the LTC Garrison Command, was not named in four EEO complaints and asked members from the Staff Judge Advocate Office ( Agency representative, USAG Japan and the Chief of the Administrative and International Law Division , USAG Okinawa) to review Complainant’s work. o. On Ja nuary 15, 2020, EEO Ma nager 2 deemed Complainant’s request for documents for EEO cases as inappropriate and accused Complainant of malpractice/wrongdoing when he elected not to use collateral duty counselors . p. On January 16, 2020, EEO Manager 2 did not invite Complainant to a meeting to discuss EEO cases Complainant was processing . q. On January 17, 2020, the Deputy to the Garrison Commander (Deputy) , on the recommendation of EEO Manager 2 did not invite Complainant to a meeting on EEO cases Complainant was p rocessing . r. Between September 9, 2019 and January 17, 2020, EEO Manager 2 and the Deputy issued Complainant and EEO Specialist conflicting instructions which had an impact upon the EEO process and efficiency . s. On January 16, 2020, EEO Specialist informed C omplainant that the Deputy wanted him to cease his role as the administrative processor for six complaints. After an investigation , the Agency provided Complainant with a copy of the investigative file, and Complainant requested a h earing before an EEOC A dministrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on May 4, 2021. Both Complainant and the Agency responded to the Notice of Intent. On May 20, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. Legal Analysis: The Commission's regulations allow an AJ to gra nt summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v . Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. , 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s l egal and factual	Tyson A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004001 Hearing No. 480-2020-00449X Agency No. ARIMCOMHQ19JUL02929 DECISION On July 7, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 14, 2021 final order concerning an equal employment opportunity (EEO) complaint alleging 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 relevant time, Complainant worked as a n EEO Counselor at the Agency’s United States Army Garrison in Okinawa, Japan. On September 24, 2019, Complainant filed a formal complaint, which he later amended, claiming that the Agency unlawfully ret aliated against him for his prior pr otected EEO activ ity when : a. In late January/February 2019, the EEO Manager contacted Collateral Duty EEO Counselors assigned to U.S. Army Garrison Okinawa, Japan, prior to making initial contact with Complainant. b. On o r about April 5, 2019, the EEO Manager instructed Complainant not to provide required sustainment training to Collateral Duty Counselors assigned to U.S. Garrison, Okinawa, Japan, which was done with the intent to undermine him in the workplace . c. On June 5, 2019, the EEO Manager directed Complainant to “coach” an inexperienced Collateral Duty EEO Counselor who had been assigned to process a pre-complaint that was 49 days old. d. On June 7, 2019, the EEO Manager falsely informed an EEO Assistant that Complaina nt deliberately hung up on her . e. On June 10, 2019, Complainant became aware the EEO Manager attempted to change his position description. f. On unspecified dates, EEO Manager 2 failed to select Complainant and failed to forward his multiple r equests to be ce rtified as a collateral duty EEO Counselor trainer . g. From June 4- 8, 2018, when EEO Manager 2 served as instructor for Department of Army EEO Counselor Certification Course, Tori Station, Okinawa, and declined to certify Complainant as a trainer . h. In early August 2018, Complainant applied for EEO Manager position, Vacancy Announcem ent Number FEFC180190350214, Control Number 507506800, open from August 8- 20, 2018 on USDJOBS website; the vacancy was withdrawn and posted within days , requiring Complainant to re -apply for the position a second time . i. On or around November 6, 2018, EEO Manager 2 interfered in the hiring process for Vacancy Number FEFC 1801903508269, resulting in the Complainant’s non-selection for the position. j. In late 2018/early 2019, the Colone l did not select Complainant for EEO Manager position, Vacancy Announcement Number FEFC1801903508269, Control Number 509515000. k. On July 10, 2019, EEO Manager 2 blamed Complainant for failure to issue a Collateral Duty Counselor a certificate of completion (delayed by more than one year), although Complainant had followed up with EEO Manager 2 about the matter several times . l. On August 19, 2019, EEO Manager 2 contacted the IMCOM EEO official, and other U.S. Gar rison Okinawa, Japan employees, regarding Compl ainant’s attendance to the Fede ral Dispute Resolution Conference (FDR) in Philadelphia, Pennsylvania, conducted August 12- 19, 2019. m. From November 14, 2019 to present, EEO Manager 2 used his influence to manipulate Agency Officials in the appointment/non- appointment of an Acting EEO Manager for USAG Japan and interfered with communications between the USAG Japan and USAG Okinawa EEO offices . n. On November 14, 2019, EEO Manager 2 accused Complainant of not doing his “due diligence” in ensuring the LTC Garrison Command, was not named in four EEO complaints and asked members from the Staff Judge Advocate Office ( Agency representative, USAG Japan and the Chief of the Administrative and International Law Division , USAG Okinawa) to review Complainant’s work. o. On Ja nuary 15, 2020, EEO Ma nager 2 deemed Complainant’s request for documents for EEO cases as inappropriate and accused Complainant of malpractice/wrongdoing when he elected not to use collateral duty counselors . p. On January 16, 2020, EEO Manager 2 did not invite Complainant to a meeting to discuss EEO cases Complainant was processing . q. On January 17, 2020, the Deputy to the Garrison Commander (Deputy) , on the recommendation of EEO Manager 2 did not invite Complainant to a meeting on EEO cases Complainant was p rocessing . r. Between September 9, 2019 and January 17, 2020, EEO Manager 2 and the Deputy issued Complainant and EEO Specialist conflicting instructions which had an impact upon the EEO process and efficiency . s. On January 16, 2020, EEO Specialist informed C omplainant that the Deputy wanted him to cease his role as the administrative processor for six complaints. After an investigation , the Agency provided Complainant with a copy of the investigative file, and Complainant requested a h earing before an EEOC A dministrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on May 4, 2021. Both Complainant and the Agency responded to the Notice of Intent. On May 20, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to gra nt summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v . Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. , 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s l egal and factual conclusions, and t he Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R . Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision i tself, will both be reviewed de novo ). To successfully oppose a de cision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute wo uld indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establis h suc h a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact -finder could not find in Complainant’s favor. In his formal complaint and investigative affidavit Complainant identified his role as an EEO counselor , his settlement recommendations in three complaints, a nd the pursuit of the instant complaint as his relevant protected activity for which he believes he was being subjected to harassment based on retaliatory animus . To prove his harassment claim, Complainant must establish that he was subjected to conduct t hat was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the c onduct was taken because of a protected basis – in this case, based on his claimed protected activity. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. See Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982) ; Harris v. Forklift Systems, Inc ., 510 U.S. 17, 21 (1993) . See also , Enforcement Guidance on Harris v. Forklift Systems Inc. , EEOC Notice No. 915.002 (March 8, 1994). Complainant applied to be an EEO Manager , GS -13, in late 2018. He was not selected and another candidate was chosen. Both the selectee and Compla inant were interviewed by a panel, who recommended the selectee because they believed she better articulated her prior supervisory experience. The Colonel accepted the recommendation of the panel and stated that he did not know the selectee at the time he chose her . In addition to his non- selection, the essence of Complainant ’s claim s are that after her selection and arrival in the office the selectee (“EEO Manager ”), with ill intent, attemp ted to change his position description and engaged in a pattern of harassing him about his work and wrongly accusing him of petty misconduct like hanging up on her. Complai nant also alleged that the EEO Manager, IMCOM -Pacific, GS -14 (“EEO Manager 2 ”) interfered with the selection process to ensure he was not select ed and, on vari ous occasions, blamed/accus ed Complainant of various work problems. In his decision, the AJ determined that while Complainant raised a variety of issues, including being remove d from a single group of cases, being subjected to work perform ance criticisms, and experiencing a lack of communication, such actions would not have obstructed Complainant’s ability to perform his duties a s an EEO Counselor. The AJ further noted that Complainant failed to provide any specific example, supported by competent evidence, to establish that management’s actions had the actual effect of unreasonably interfering his duties as an EEO Counselor or were motivated by retaliatory animus . The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or autocratic attitude. See Bouche v. U.S. Postal Serv. , EEOC A ppeal No. 01990799 (Mar. 13, 2002) . See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes only prohibit harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the management officials involved in the disputed matters were motivated by retaliatory animus . Based on the evidence of record, it is highly unlikely that the EEO officials accused by Co mplainant of ret aliation harbored animus towards him because of his role as an EEO counselor or his participation in the settlement of cases, part of his official duties . Rather, the weight of the evidence indicates that these ev ents were common workplace disagreements regarding the organization of the office and the perf ormance of work tasks. Complainant ’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service , EEOC A ppeal No. 01982923 ( Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment finding no discrimination was established . STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion , reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Reque sts for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of t his decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from re ceipt of another party’s request for reconsideration within 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 M D-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her re quest and arguments to the Di rector, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washingt on, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statem ent or brief in opposition must also include proof of service on the other party, unless Compl ainant files his or her reque st via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will res ult in dismissal of the party’s request for reconsideration as untimely, unless extenuating ci rcumstances prevented the tim ely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. T he Commis sion 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 Unite d States District Court within ninety (90) calendar days from the date that you receive this decision. 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 t hat 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 proces sing of your complaint . RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or secu rity 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 t he 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 o f Federal Operations October 14, 2021 Date	[ "477 U.S. 317", "846 F.2d 103", "682 F.2d 897", "510 U.S. 17", "654 F.2d 1181", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.109(g)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.12046194076538086, 0.0537814162671566, 0.015192554332315922, -0.013386934995651245, 0.02688099630177021, 0.008379206992685795, 0.06127014756202698, -0.02627629227936268, -0.013871388509869576, 0.06119580939412117, 0.08800291270017624, -0.01274970080703497, 0.027311595156788826, 0.037607...
50	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001286.pdf	2023001286.pdf	PDF	application/pdf	13,025	Denese G. ,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency.	November 17, 2022	Appeal Number: 2023001286 Background: At the time of events giving rise to this complaint, Complainant worked as a Child and Yout h Program Assistant at the Agency’s Beale Air Force Base (AFB) in California. On August 26, 2022 2, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Japanese), color (olive complexion ), sex (female) , disability (stress and diabetes) , age (born 1964) , and reprisal for prior protected EEO activity (reporting incidents of sexual harassment from July 2021 thro ugh September 2021 and alleging coworker theft). 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 Complainant informed the EEO Counselor that she did not learn of the Agency EEO program until July 14, 2022, when she was a witness in a former coworker ’s EEO complaint. Specifically, Complainant alleged, between May 2020 and September 2021, the Agency subjected her to hostile work environment harassment and, effective September 18, 2021, it removed her from employment. As t o harassment, Complainant alleged that a male coworker sexually harassed her and the Agency failed to intercede, address, or accept her claim of sexual harassment and assault . Further, Complainant alleged that the Agency created false accusations, threatened that she would never again receive AFB employment, revoked three job offers made days earlier , denied Complainant target pay, failed to provide Complainant COVID 19 vaccine appointments, admonished her, compelled her to clean rodent debris, and denied her meal breaks. Complainant fil ed a formal EEO complaint a lleging the same. In its November 17, 2022 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. The Agency stated that the most recent discriminatory even t occurred in September 2021, but Complainant did not initiate EEO contact until August 26, 2022. The record includes docu mentation showing that Complainant was provided EEO training at new employee orientation and copies of EEO brochures and bulletin boards in the Agency ’s workplace . The record reveals t he Agency issued Complainant a m emorandum, dated September 17, 2021, for Separation during Probationary Period. The Agency cited insubordination, lack of professionali sm, and lack of reliability as the justifications. Also, in paragraph 4, the Agency stated: Separation during probation period is not subject to the NA F grievance or appeal proce dure, however, c omplaints that such separation was based, in whole or in part, on discrimination because of race, color, religion, sex, national or igin, age, disability, or genetic information are proce ssed according to AFI 36- 2706, Equal Opportunity P rogram Military and Civilian . On appeal, Complainant reiterated that she was no t aware of an EEO program at Beale AFB and that there are no common areas with EEO information there. She added that the Agency is trying to misrepresent that there was EEO training and statutory notices. Complainant stated that she was not aware of the EE O Regulations and statutory time frames so, in September 2021, she began l ooking for legal assistance in various other places. She stated that most resources stated that s he had a year -long statute of limitations. Complainant noted that she contacted the National Whistleblower Legal Defense Fund, after which she created a whistl eblower name and email to request information confidentially from organizations . Her anonymous contact with various organizations is reflected in the record. 3 We note that Chapter 4 of AFI 36 -2706 provides information on the Civilian Equal Opportunity Complain t Process, including the 45- day timeframe to initiate E EO contact. The record contains an email, dated October 28, 2021, in which The Legal Network for Gender Equity (“Network ”) requested legal intake from Complainant to provide her with attorney referrals in her locale. In an email dated November 4, 2021, a Network attorney informed Complaina nt that he did not represent her , but provided the information that follows. Here is a website for the EEOC, which discusses unlawful forms of workplace discrimination under feder al law: https://www.eeoc.gov/federal -sector/ove rview - federal -sector -eeo-complaint -process Please note that claims with the EEOC must be filed within 45 days of the discriminatory or harassing conduct to preserve your federal and stat e rights. The Agency opposed Complainant ’s appeal , stating that she was given EEO information at new employee orientation, that there were EEO brochures in her workplace, that it provided information on EEO in its remo val memorandum , and that there is EEO information on the Agency website. Legal Analysis: Upon review, the Commissi on finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Child and Yout h Program Assistant at the Agency’s Beale Air Force Base (AFB) in California. On August 26, 2022 2, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Japanese), color (olive complexion ), sex (female) , disability (stress and diabetes) , age (born 1964) , and reprisal for prior protected EEO activity (reporting incidents of sexual harassment from July 2021 thro ugh September 2021 and alleging coworker theft). 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 Complainant informed the EEO Counselor that she did not learn of the Agency EEO program until July 14, 2022, when she was a witness in a former coworker ’s EEO complaint. Specifically, Complainant alleged, between May 2020 and September 2021, the Agency subjected her to hostile work environment harassment and, effective September 18, 2021, it removed her from employment. As t o harassment, Complainant alleged that a male coworker sexually harassed her and the Agency failed to intercede, address, or accept her claim of sexual harassment and assault . Further, Complainant alleged that the Agency created false accusations, threatened that she would never again receive AFB employment, revoked three job offers made days earlier , denied Complainant target pay, failed to provide Complainant COVID 19 vaccine appointments, admonished her, compelled her to clean rodent debris, and denied her meal breaks. Complainant fil ed a formal EEO complaint a lleging the same. In its November 17, 2022 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. The Agency stated that the most recent discriminatory even t occurred in September 2021, but Complainant did not initiate EEO contact until August 26, 2022. The record includes docu mentation showing that Complainant was provided EEO training at new employee orientation and copies of EEO brochures and bulletin boards in the Agency ’s workplace . The record reveals t he Agency issued Complainant a m emorandum, dated September 17, 2021, for Separation during Probationary Period. The Agency cited insubordination, lack of professionali sm, and lack of reliability as the justifications. Also, in paragraph 4, the Agency stated: Separation during probation period is not subject to the NA F grievance or appeal proce dure, however, c omplaints that such separation was based, in whole or in part, on discrimination because of race, color, religion, sex, national or igin, age, disability, or genetic information are proce ssed according to AFI 36- 2706, Equal Opportunity P rogram Military and Civilian . On appeal, Complainant reiterated that she was no t aware of an EEO program at Beale AFB and that there are no common areas with EEO information there. She added that the Agency is trying to misrepresent that there was EEO training and statutory notices. Complainant stated that she was not aware of the EE O Regulations and statutory time frames so, in September 2021, she began l ooking for legal assistance in various other places. She stated that most resources stated that s he had a year -long statute of limitations. Complainant noted that she contacted the National Whistleblower Legal Defense Fund, after which she created a whistl eblower name and email to request information confidentially from organizations . Her anonymous contact with various organizations is reflected in the record. 3 We note that Chapter 4 of AFI 36 -2706 provides information on the Civilian Equal Opportunity Complain t Process, including the 45- day timeframe to initiate E EO contact. The record contains an email, dated October 28, 2021, in which The Legal Network for Gender Equity (“Network ”) requested legal intake from Complainant to provide her with attorney referrals in her locale. In an email dated November 4, 2021, a Network attorney informed Complaina nt that he did not represent her , but provided the information that follows. Here is a website for the EEOC, which discusses unlawful forms of workplace discrimination under feder al law: https://www.eeoc.gov/federal -sector/ove rview - federal -sector -eeo-complaint -process Please note that claims with the EEOC must be filed within 45 days of the discriminatory or harassing conduct to preserve your federal and stat e rights. The Agency opposed Complainant ’s appeal , stating that she was given EEO information at new employee orientation, that there were EEO brochures in her workplace, that it provided information on EEO in its remo val memorandum , and that there is EEO information on the Agency website. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate conta ct with an EEO Counselor within forty- five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, withi n 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 45 day limitation period is triggered. See Howar d v. Dep ’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 disc rimination have become apparent. See Complainant v. United States Postal Service, EEOC Appeal No. 0120120499 (Apr il 19, 2012). Here, it is undisputed that Complainant alleged discr iminatory events occurred between May 2020 and September 18, 2021 (the pers onnel action of her removal ). However, Complainant did not initiate EEO contact until August 26, 2022, which is well beyond the 45- day limitation period. Complainant stated that she was unaware of EEO statutory timeframes, however, she provided a November 4, 2021 email from a Network attorney giving her the website link to the EEO Federal Sector Process and informing her of the 45 day deadline. Additionally, the information provided in paragraph (4) of the Agency’ s September 2021 separation memorandum provi des a referral to AFI -36-2706. Chapter 4 of AFI 36 -2706 provides information on the Civilian Federal S ector EEO process and the 45- day timeframe to initiate EEO contact. 29 C.F.R § 1614.105(a)(2) provides that the 45- day limitation period shall be extended when the complainant was not notified of the time limits and was not otherwise aware of th em. We conclude that there is insufficient justification for exercising our discretion, under 29 C.F.R § 1614.604(c), to excuse Complainant’s delay in seeking EEO counseling. Notwithstanding, we caution the Agency to include the time sensitive nature of the EEO process and related rights in its adverse actions . Based on the above, we A FFIRM the Agency ’s decision to dismiss Complainant’ s claims of harassment and di scriminatory removal for untimely EEO contact. CONC LUSION We AFFIRM the Agency's final decision dismissing Complainant's complaint .	Denese G. ,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2023001286 Agency No. 4O1C2200837 DECISION Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 17, 2022, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Upon review, the Commissi on finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Child and Yout h Program Assistant at the Agency’s Beale Air Force Base (AFB) in California. On August 26, 2022 2, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Japanese), color (olive complexion ), sex (female) , disability (stress and diabetes) , age (born 1964) , and reprisal for prior protected EEO activity (reporting incidents of sexual harassment from July 2021 thro ugh September 2021 and alleging coworker theft). 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 Complainant informed the EEO Counselor that she did not learn of the Agency EEO program until July 14, 2022, when she was a witness in a former coworker ’s EEO complaint. Specifically, Complainant alleged, between May 2020 and September 2021, the Agency subjected her to hostile work environment harassment and, effective September 18, 2021, it removed her from employment. As t o harassment, Complainant alleged that a male coworker sexually harassed her and the Agency failed to intercede, address, or accept her claim of sexual harassment and assault . Further, Complainant alleged that the Agency created false accusations, threatened that she would never again receive AFB employment, revoked three job offers made days earlier , denied Complainant target pay, failed to provide Complainant COVID 19 vaccine appointments, admonished her, compelled her to clean rodent debris, and denied her meal breaks. Complainant fil ed a formal EEO complaint a lleging the same. In its November 17, 2022 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. The Agency stated that the most recent discriminatory even t occurred in September 2021, but Complainant did not initiate EEO contact until August 26, 2022. The record includes docu mentation showing that Complainant was provided EEO training at new employee orientation and copies of EEO brochures and bulletin boards in the Agency ’s workplace . The record reveals t he Agency issued Complainant a m emorandum, dated September 17, 2021, for Separation during Probationary Period. The Agency cited insubordination, lack of professionali sm, and lack of reliability as the justifications. Also, in paragraph 4, the Agency stated: Separation during probation period is not subject to the NA F grievance or appeal proce dure, however, c omplaints that such separation was based, in whole or in part, on discrimination because of race, color, religion, sex, national or igin, age, disability, or genetic information are proce ssed according to AFI 36- 2706, Equal Opportunity P rogram Military and Civilian . On appeal, Complainant reiterated that she was no t aware of an EEO program at Beale AFB and that there are no common areas with EEO information there. She added that the Agency is trying to misrepresent that there was EEO training and statutory notices. Complainant stated that she was not aware of the EE O Regulations and statutory time frames so, in September 2021, she began l ooking for legal assistance in various other places. She stated that most resources stated that s he had a year -long statute of limitations. Complainant noted that she contacted the National Whistleblower Legal Defense Fund, after which she created a whistl eblower name and email to request information confidentially from organizations . Her anonymous contact with various organizations is reflected in the record. 3 We note that Chapter 4 of AFI 36 -2706 provides information on the Civilian Equal Opportunity Complain t Process, including the 45- day timeframe to initiate E EO contact. The record contains an email, dated October 28, 2021, in which The Legal Network for Gender Equity (“Network ”) requested legal intake from Complainant to provide her with attorney referrals in her locale. In an email dated November 4, 2021, a Network attorney informed Complaina nt that he did not represent her , but provided the information that follows. Here is a website for the EEOC, which discusses unlawful forms of workplace discrimination under feder al law: https://www.eeoc.gov/federal -sector/ove rview - federal -sector -eeo-complaint -process Please note that claims with the EEOC must be filed within 45 days of the discriminatory or harassing conduct to preserve your federal and stat e rights. The Agency opposed Complainant ’s appeal , stating that she was given EEO information at new employee orientation, that there were EEO brochures in her workplace, that it provided information on EEO in its remo val memorandum , and that there is EEO information on the Agency website. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate conta ct with an EEO Counselor within forty- five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, withi n 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 45 day limitation period is triggered. See Howar d v. Dep ’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 disc rimination have become apparent. See Complainant v. United States Postal Service, EEOC Appeal No. 0120120499 (Apr il 19, 2012). Here, it is undisputed that Complainant alleged discr iminatory events occurred between May 2020 and September 18, 2021 (the pers onnel action of her removal ). However, Complainant did not initiate EEO contact until August 26, 2022, which is well beyond the 45- day limitation period. Complainant stated that she was unaware of EEO statutory timeframes, however, she provided a November 4, 2021 email from a Network attorney giving her the website link to the EEO Federal Sector Process and informing her of the 45 day deadline. Additionally, the information provided in paragraph (4) of the Agency’ s September 2021 separation memorandum provi des a referral to AFI -36-2706. Chapter 4 of AFI 36 -2706 provides information on the Civilian Federal S ector EEO process and the 45- day timeframe to initiate EEO contact. 29 C.F.R § 1614.105(a)(2) provides that the 45- day limitation period shall be extended when the complainant was not notified of the time limits and was not otherwise aware of th em. We conclude that there is insufficient justification for exercising our discretion, under 29 C.F.R § 1614.604(c), to excuse Complainant’s delay in seeking EEO counseling. Notwithstanding, we caution the Agency to include the time sensitive nature of the EEO process and related rights in its adverse actions . Based on the above, we A FFIRM the Agency ’s decision to dismiss Complainant’ s claims of harassment and di scriminatory removal for untimely EEO contact. CONC LUSION We AFFIRM the Agency's final decision dismissing Complainant's complaint . STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complain ant or the Agency submits a writ ten request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation of material fact or law; or 2. The appellate decision will have a substan tial impact on the policies, pra ctices, or operations of the agency. Requests for reconsideration must be filed with EEOC’ s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconside ration elects to file a statemen t or brief in support of the request, that statement or brief must be filed together with t he request for reconsideration . A party shall have twenty (20) calendar days from receipt of another party’s req uest for reconsideration within which to submit a br ief 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). Complainant should s ubmit his or her request for reconsideration, and an y statement or brief in support of his or her request, via the EEOC Public Portal, which ca n be found at https://publicportal.eeoc.gov/Port al/Login.aspx Alternatively, Complainant can submi t his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certifi ed mail addressed to 131 M Street, NE, Washington, D C 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing pe riod. See 29 C.F .R. § 1614.604. An agency’s reque st for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other part y, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the par ty’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsiderat ion filed after the deadline only i n 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 Dis trict Court with in ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency h ead or depart ment head, identifying that person by his or her ful l name and official title. Failure to do so may res ult in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility o r department in which you work. If you file a req uest to reconsid er 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 procee d 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 req uests for waiver of court costs o r 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 (pl ease read the paragraph titled Compl ainant’s Right t o 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 June 5, 2023 Date	[ "Complainant v. United States Postal Service, EEOC Appeal No. 0120120499 (Apr il 19, 2012)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 791" ]	[ -0.07296475023031235, 0.03904642537236214, -0.0037127966061234474, 0.057770244777202606, 0.014251172542572021, 0.05196446552872658, 0.03002217411994934, -0.0032540897373110056, -0.02306365594267845, 0.03353909030556679, 0.06347068399190903, 0.00041019771015271544, -0.017616277560591698, 0....
51	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01994493.txt	01994493.txt	TXT	text/plain	13,145	Charles W. Walton v. Louis Caldera 01994493 . Charles W. Walton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.	March 24, 1998	Appeal Number: 01994493 Case Facts: Complainant filed a timely appeal with this Commission from a final agency decision (FAD) dismissing his complaint of unlawful employment discrimination brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405). After receiving a notice of proposed suspension in January 1998, regarding his conduct which was the subject of a successful EEO complaint against him by a subordinate, complainant filed a grievance, followed-up by another grievance filed on March 24, 1998, after he received a 10 day suspension, hand-delivered on March 11, 1998. Complainant then "refiled" his grievance on May 5, 1998, to sever the EEO matters contained therein, and brought these severed matters to the attention of an EEO Counselor on May 11, 1998. During counseling, complainant alleged that he had been subjected to discrimination and harassment for years due to his race and sexual orientation. More specifically, he alleged that the 1997 EEO complaint against him was based on erroneous information, which the agency did not attempt to verify, and that management then used this erroneous information as the basis for his January 1998 suspension. Moreover complainant contends that in January 1998, this EEO documentation, as well as the suspension itself, were publicized to his detriment and in violation of his privacy, and yet those who released the information were not disciplined. In this context, complainant also contends that the agency based a 1997 EEO newsletter on the complaint against him, and that EEO counselors made statements against him during the 1995 to 1997 complaint processing period. When the above matters were not successfully resolved, complainant filed a formal complaint on July 20, 1999, wherein he identified these matters (claim A). Complainant also raised the following matters, claimed as reprisal for role as the discriminating agency official in the EEO complaint against him (claim B): (1) his office was required to take a refresher course on customer service based on only a single negative comment; (2) the Director uses only first names to address those of Chinese ethnicity; (3) he was not interviewed by the EEO counselor; (4) an EEO Counselor made statements about a certain individual being involved in the complaint against him; and, (5) when the Director hand-delivered his 10 day suspension, she told him how she was treated when she took her car for repairs because the repair did not think she was from Hawaii. In its FAD, the agency dismissed claim A for untimely contact with an EEO Counselor, noting that complainant had previously served as an EEO Counselor and was aware of the time limits, and that he clearly knew of the discrimination prior to March 24, 1998, when he acknowledged that some of the matters he raised in his grievance were EEO related, and that he was deciding whether to engage in the EEO process. Claim B was dismissed by the agency for failure to state a claim upon the finding that complainant had not engaged in EEO activity prior to the events in question. On appeal, complainant argues that the correct date to use to determine timeliness is May 5, 1998, the date the EEO issues were separated from the grievance issues, arguing that this is when the EEO "clock began to tick," apparently contending that filing the grievance tolled the time for filing the EEO complaint. Complainant additionally contends that the Director failed to inform him about election rights and procedures, and that the EEO Counselor failed to inform him that his contact was untimely. Regarding the dismissal of his reprisal claim, complainant argues that because he was adversely treated as the named discriminating official in the EEO complaint against him, that this is sufficient to state a claim of reprisal. Complainant also requests adding additional claims to his complaint, arguing that they are related, including: sexual actions and talk by other employees; a subordinate mistakenly attributing a negative remark to him; and, a situation involving comments that an former EEO official helped the complainant in the EEO complaint against him. The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as Legal Analysis: 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. Review of the record discloses that complainant does not dispute that he was aware of the EEO potential of the incidents in claim A at the time they occurred, as acknowledged in his March 24, 1998 statement, but instead he argues that by virtue of filing the grievance, and initiating the negotiated grievance procedure, he tolled the 45 day time requirement for contacting an EEO counselor. We note, however that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995). Moreover, although complainant claims that he was not informed about the election process early on in the grievance procedure, we find that the record reflects that the complainant nevertheless was aware of the election procedure, and any omission of this nature was therefore harmless.	Charles W. Walton v. Louis Caldera 01994493 . Charles W. Walton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency. Appeal No. 01994493 Agency No. AOEWFO-98-0710210 DECISION Complainant filed a timely appeal with this Commission from a final agency decision (FAD) dismissing his complaint of unlawful employment discrimination brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405). After receiving a notice of proposed suspension in January 1998, regarding his conduct which was the subject of a successful EEO complaint against him by a subordinate, complainant filed a grievance, followed-up by another grievance filed on March 24, 1998, after he received a 10 day suspension, hand-delivered on March 11, 1998. Complainant then "refiled" his grievance on May 5, 1998, to sever the EEO matters contained therein, and brought these severed matters to the attention of an EEO Counselor on May 11, 1998. During counseling, complainant alleged that he had been subjected to discrimination and harassment for years due to his race and sexual orientation. More specifically, he alleged that the 1997 EEO complaint against him was based on erroneous information, which the agency did not attempt to verify, and that management then used this erroneous information as the basis for his January 1998 suspension. Moreover complainant contends that in January 1998, this EEO documentation, as well as the suspension itself, were publicized to his detriment and in violation of his privacy, and yet those who released the information were not disciplined. In this context, complainant also contends that the agency based a 1997 EEO newsletter on the complaint against him, and that EEO counselors made statements against him during the 1995 to 1997 complaint processing period. When the above matters were not successfully resolved, complainant filed a formal complaint on July 20, 1999, wherein he identified these matters (claim A). Complainant also raised the following matters, claimed as reprisal for role as the discriminating agency official in the EEO complaint against him (claim B): (1) his office was required to take a refresher course on customer service based on only a single negative comment; (2) the Director uses only first names to address those of Chinese ethnicity; (3) he was not interviewed by the EEO counselor; (4) an EEO Counselor made statements about a certain individual being involved in the complaint against him; and, (5) when the Director hand-delivered his 10 day suspension, she told him how she was treated when she took her car for repairs because the repair did not think she was from Hawaii. In its FAD, the agency dismissed claim A for untimely contact with an EEO Counselor, noting that complainant had previously served as an EEO Counselor and was aware of the time limits, and that he clearly knew of the discrimination prior to March 24, 1998, when he acknowledged that some of the matters he raised in his grievance were EEO related, and that he was deciding whether to engage in the EEO process. Claim B was dismissed by the agency for failure to state a claim upon the finding that complainant had not engaged in EEO activity prior to the events in question. On appeal, complainant argues that the correct date to use to determine timeliness is May 5, 1998, the date the EEO issues were separated from the grievance issues, arguing that this is when the EEO "clock began to tick," apparently contending that filing the grievance tolled the time for filing the EEO complaint. Complainant additionally contends that the Director failed to inform him about election rights and procedures, and that the EEO Counselor failed to inform him that his contact was untimely. Regarding the dismissal of his reprisal claim, complainant argues that because he was adversely treated as the named discriminating official in the EEO complaint against him, that this is sufficient to state a claim of reprisal. Complainant also requests adding additional claims to his complaint, arguing that they are related, including: sexual actions and talk by other employees; a subordinate mistakenly attributing a negative remark to him; and, a situation involving comments that an former EEO official helped the complainant in the EEO complaint against him. The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as 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. Review of the record discloses that complainant does not dispute that he was aware of the EEO potential of the incidents in claim A at the time they occurred, as acknowledged in his March 24, 1998 statement, but instead he argues that by virtue of filing the grievance, and initiating the negotiated grievance procedure, he tolled the 45 day time requirement for contacting an EEO counselor. We note, however that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995). Moreover, although complainant claims that he was not informed about the election process early on in the grievance procedure, we find that the record reflects that the complainant nevertheless was aware of the election procedure, and any omission of this nature was therefore harmless. Accordingly, we AFFIRM the agency's DISMISSAL of claim A for untimely EEO contact. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. § 1614.107(a)(1)) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, or reprisal for engaging in protected EEO activity. 29 C. F. R. 05 16 14.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Here, we find that complainant has failed to state an actionable claim of reprisal because the record confirms that he did not engage in protected EEO activity previous to the instant complaint.<2> Moreover, although he claims reprisal because of the adversity he experienced as being the named discriminating official in an EEO complaint, this is not recognized by the Commission as "protected EEO activity." Cote v. Department of Veterans Affairs, EEOC Appeal No. 01974213 (August 4, 1998). Accordingly, we AFFIRM the agency's DISMISSAL of claim B for failure to state a claim. Finally, regarding complainant's request to add additional claims to his formal complaint, we note that it appears that these matters are being raised for the first time on appeal. We advise complainant that if he wishes to pursue these new matters through the EEO process, he is advised to contact an EEO Counselor regarding them. In conclusion, we AFFIRM the FAD's dismissal of the instant complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §1614.405); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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). COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 July 27, 2000 __________________ Date 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov. 2Although the record shows that complainant had been an EEO counselor at some point in time, he did not identify this as the "protected EEO activity" upon which the instant claim is based.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "EEO Counselor. Schermerhorn v. United States Postal Service, EEOC Request No. 05940729 (February 10, 1995)", "Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "Cote v. Department of Veterans Af...	[ -0.10192632675170898, 0.1010754331946373, 0.005782244261354208, 0.048831142485141754, 0.02492251619696617, 0.10269756615161896, -0.02015935629606247, 0.05376628413796425, -0.04131796956062317, -0.0042564538307487965, 0.030625544488430023, 0.021673008799552917, 0.0060406518168747425, -0.030...
52	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01980729.txt	01980729.txt	TXT	text/plain	13,268		October 3, 1997	Appeal Number: 01980729 Case Facts: Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The final agency decision was issued on October 3, 1997. The appeal was postmarked November 1, 1997. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On July 14, 1997, appellant initiated contact with an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On August 11, 1997, appellant's attorney received a Notice of Final Interview, informing appellant that she had fifteen days from the date of its receipt in which to timely file a formal complaint. On September 9, 1997, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex, disability, and reprisal. On October 3, 1997, the agency issued a final decision. Therein, the agency determined that appellant's formal complaint was comprised of twenty-three allegations. The agency dismissed appellant's complaint on the grounds that appellant failed to file a timely complaint. Specifically, the agency found that appellant received a Notice of Final Interview on August 11, 1997, and that the date on which appellant filed a formal complaint was more than fifteen days after receipt of the Notice. The agency also dismissed eight allegations on the alternative grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. On appeal, appellant states that on August 4, 1997, an agency EEO official contacted her to schedule a final interview; that appellant informed the EEO official that she needed to submit additional information; and that the EEO official agreed to mail a copy of the Notice of Final Interview to appellant after she received the additional information, that had been sent by fax from appellant. Appellant further states that when she received the Notice of Final Interview by mail, she noticed that some "issues had still not been corrected to include the information I had faxed to [the EEO official]." Appellant argues that because the Notice did not contain all the information included in the fax transmission of August 4, 1997, she again faxed information to the EEO official, with a request that the EEO official contact her to amend the Notice of Final Interview. Appellant further argues that the EEO official stated that she would amend the Notice and said something about a "clock ticking." Appellant stated that she asked the EEO official if the "clock is ticking for [appellant] to get [the EEO official] this additional information?;" that the EEO official did not respond to this question; and that appellant construed her silence as reflecting that she had done everything that was necessary to do up to that point. Appellant notes that she made subsequent unsuccessful attempts to secure an amended Notice of Final Interview from the agency EEO official, and that on September 9, 1997, she was informed by her attorney that the agency indicated that it intended to dismiss any complaint filed by appellant as untimely. Appellant concludes by stating that a complaint was filed on that day, and was thereafter improperly dismissed as untimely filed. In response, the agency argues that appellant's complaint was untimely filed, approximately two weeks after the expiration of the fifteen-day limitation period. The agency further argues that neither appellant nor her attorney was misled regarding the processing of her complaint. The agency also states that appellant asserted that extreme duress and placement on medical leave were contributing factors in her late filing, and argues that this assertion should be rejected. The record in this case contains an affidavit from the agency EEO Counselor who provided EEO counseling to appellant in the instant complaint. Therein, the EEO Counselor stated that on August 4, 1997, she contacted appellant to schedule a final interview; that appellant stated that the EEO Counselor should mail the Notice of Final Interview to her; and that appellant indicated that she had more information. The EEO Counselor indicated that she required copies of letters prepared by appellant, and was informed by appellant that the letters would be faxed to her. The EEO Counselor stated that she received the fax transmission from appellant, and discovered "numerous added issues, which [she] processed and added to her report." The EEO Counselor further stated that on August 8, 1997, she mailed the Notice of Final Interview, which was received by appellant's attorney on August 11, 1997. The EEO Counselor also stated that on August 12, 1997, she received a telephone call from appellant, who asked her if she had received the August 4, 1997 fax transmission; that she, the EEO Counselor, assured appellant that the additional issues were included in the report; and that appellant demanded that the EEO Counselor mail her another Notice of Final Interview. The EEO Counselor stated that she explained to appellant that because the EEO Counselor had included all appellant's requested issues, another Notice of Final Interview would not be issued. Finally, the EEO Counselor stated that she had reminded appellant that "she must file her formal complaint within the time limits indicated in the final interview letter." The record also contains another statement by the EEO Counselor, identified as a "Memorandum For Record" dated August 13, 1997. Therein, the EEO Counselor stated that on August 12, 1997, she received a call from appellant, who asked if the EEO Counselor received a fax sent on August 4, 1997. The EEO Counselor stated that she acknowledged receipt of the fax, and assured appellant that the issues were considered as having been the subject of EEO counseling, although they were not included in appellant's Notice of Final Interview. The EEO Counselor further stated that appellant indicated that this "was not good enough;" that she demanded another final interview letter; that she was informed that another Notice of Final Interview would not be issued; and that she was reminded that the "clock was ticking" regarding the filing of an EEO complaint. The EEO Counselor also stated that on August 13, 1997, she left a message on appellant's answering machine and "again reminded her that her 15 days to file a formal remained in effect." Legal Analysis: EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e), or (f). EEOC Regulation 29 C.F.R. §1614.107(b) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c). The record in this case indicates that appellant received a Notice of Final Interview on August 11, 1997, apprising her that she had fifteen days from the date of its receipt in which to file a formal complaint. We are unpersuaded by appellant's contention on appeal, wherein she asserts that the limitation period was extended as a result of the purported assurances of agency EEO officials that an amended Notice would be sent to her. Instead, we find the record supports a finding that an agency EEO official reiterated, in conversations subsequent to appellant's receipt of the Notice on August 11, 1997, that the fifteen-day limitation period for timely filing a complaint commenced on the date of receipt. Appellant has failed to present adequate justification, pursuant to 29 C.F.R. §1614.604(c) for extending the filing period. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On July 14, 1997, appellant initiated contact with an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On August 11, 1997, appellant's attorney received a Notice of Final Interview, informing appellant that she had fifteen days from the date of its receipt in which to timely file a formal complaint. On September 9, 1997, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex, disability, and reprisal. On October 3, 1997, the agency issued a final decision. Therein, the agency determined that appellant's formal complaint was comprised of twenty-three allegations. The agency dismissed appellant's complaint on the grounds that appellant failed to file a timely complaint. Specifically, the agency found that appellant received a Notice of Final Interview on August 11, 1997, and that the date on which appellant filed a formal complaint was more than fifteen days after receipt of the Notice. The agency also dismissed eight allegations on the alternative grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. On appeal, appellant states that on August 4, 1997, an agency EEO official contacted her to schedule a final interview; that appellant informed the EEO official that she needed to submit additional information; and that the EEO official agreed to mail a copy of the Notice of Final Interview to appellant after she received the additional information, that had been sent by fax from appellant. Appellant further states that when she received the Notice of Final Interview by mail, she noticed that some "issues had still not been corrected to include the information I had faxed to [the EEO official]." Appellant argues that because the Notice did not contain all the information included in the fax transmission of August 4, 1997, she again faxed information to the EEO official, with a request that the EEO official contact her to amend the Notice of Final Interview. Appellant further argues that the EEO official stated that she would amend the Notice and said something about a "clock ticking." Appellant stated that she asked the EEO official if the "clock is ticking for [appellant] to get [the EEO official] this additional information?;" that the EEO official did not respond to this question; and that appellant construed her silence as reflecting that she had done everything that was necessary to do up to that point. Appellant notes that she made subsequent unsuccessful attempts to secure an amended Notice of Final Interview from the agency EEO official, and that on September 9, 1997, she was informed by her attorney that the agency indicated that it intended to dismiss any complaint filed by appellant as untimely. Appellant concludes by stating that a complaint was filed on that day, and was thereafter improperly dismissed as untimely filed. In response, the agency argues that appellant's complaint was untimely filed, approximately two weeks after the expiration of the fifteen-day limitation period. The agency further argues that neither appellant nor her attorney was misled regarding the processing of her complaint. The agency also states that appellant asserted that extreme duress and placement on medical leave were contributing factors in her late filing, and argues that this assertion should be rejected. The record in this case contains an affidavit from the agency EEO Counselor who provided EEO counseling to appellant in the instant complaint. Therein, the EEO Counselor stated that on August 4, 1997, she contacted appellant to schedule a final interview; that appellant stated that the EEO Counselor should mail the Notice of Final Interview to her; and that appellant indicated that she had more information. The EEO Counselor indicated that she required copies of letters prepared by appellant, and was informed by appellant that the letters would be faxed to her. The EEO Counselor stated that she received the fax transmission from appellant, and discovered "numerous added issues, which [she] processed and added to her report." The EEO Counselor further stated that on August 8, 1997, she mailed the Notice of Final Interview, which was received by appellant's attorney on August 11, 1997. The EEO Counselor also stated that on August 12, 1997, she received a telephone call from appellant, who asked her if she had received the August 4, 1997 fax transmission; that she, the EEO Counselor, assured appellant that the additional issues were included in the report; and that appellant demanded that the EEO Counselor mail her another Notice of Final Interview. The EEO Counselor stated that she explained to appellant that because the EEO Counselor had included all appellant's requested issues, another Notice of Final Interview would not be issued. Finally, the EEO Counselor stated that she had reminded appellant that "she must file her formal complaint within the time limits indicated in the final interview letter." The record also contains another statement by the EEO Counselor, identified as a "Memorandum For Record" dated August 13, 1997. Therein, the EEO Counselor stated that on August 12, 1997, she received a call from appellant, who asked if the EEO Counselor received a fax sent on August 4, 1997. The EEO Counselor stated that she acknowledged receipt of the fax, and assured appellant that the issues were considered as having been the subject of EEO counseling, although they were not included in appellant's Notice of Final Interview. The EEO Counselor further stated that appellant indicated that this "was not good enough;" that she demanded another final interview letter; that she was informed that another Notice of Final Interview would not be issued; and that she was reminded that the "clock was ticking" regarding the filing of an EEO complaint. The EEO Counselor also stated that on August 13, 1997, she left a message on appellant's answering machine and "again reminded her that her 15 days to file a formal remained in effect." EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e), or (f). EEOC Regulation 29 C.F.R. §1614.107(b) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c). The record in this case indicates that appellant received a Notice of Final Interview on August 11, 1997, apprising her that she had fifteen days from the date of its receipt in which to file a formal complaint. We are unpersuaded by appellant's contention on appeal, wherein she asserts that the limitation period was extended as a result of the purported assurances of agency EEO officials that an amended Notice would be sent to her. Instead, we find the record supports a finding that an agency EEO official reiterated, in conversations subsequent to appellant's receipt of the Notice on August 11, 1997, that the fifteen-day limitation period for timely filing a complaint commenced on the date of receipt. Appellant has failed to present adequate justification, pursuant to 29 C.F.R. §1614.604(c) for extending the filing period. Accordingly, the agency's decision to dismiss appellant's complaint as untimely was proper and is AFFIRMED.	Diane S. Anderson, ) Appellant, ) ) v. ) Appeal No. 01980729 ) Agency No. KHOF97515 F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The final agency decision was issued on October 3, 1997. The appeal was postmarked November 1, 1997. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On July 14, 1997, appellant initiated contact with an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On August 11, 1997, appellant's attorney received a Notice of Final Interview, informing appellant that she had fifteen days from the date of its receipt in which to timely file a formal complaint. On September 9, 1997, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex, disability, and reprisal. On October 3, 1997, the agency issued a final decision. Therein, the agency determined that appellant's formal complaint was comprised of twenty-three allegations. The agency dismissed appellant's complaint on the grounds that appellant failed to file a timely complaint. Specifically, the agency found that appellant received a Notice of Final Interview on August 11, 1997, and that the date on which appellant filed a formal complaint was more than fifteen days after receipt of the Notice. The agency also dismissed eight allegations on the alternative grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. On appeal, appellant states that on August 4, 1997, an agency EEO official contacted her to schedule a final interview; that appellant informed the EEO official that she needed to submit additional information; and that the EEO official agreed to mail a copy of the Notice of Final Interview to appellant after she received the additional information, that had been sent by fax from appellant. Appellant further states that when she received the Notice of Final Interview by mail, she noticed that some "issues had still not been corrected to include the information I had faxed to [the EEO official]." Appellant argues that because the Notice did not contain all the information included in the fax transmission of August 4, 1997, she again faxed information to the EEO official, with a request that the EEO official contact her to amend the Notice of Final Interview. Appellant further argues that the EEO official stated that she would amend the Notice and said something about a "clock ticking." Appellant stated that she asked the EEO official if the "clock is ticking for [appellant] to get [the EEO official] this additional information?;" that the EEO official did not respond to this question; and that appellant construed her silence as reflecting that she had done everything that was necessary to do up to that point. Appellant notes that she made subsequent unsuccessful attempts to secure an amended Notice of Final Interview from the agency EEO official, and that on September 9, 1997, she was informed by her attorney that the agency indicated that it intended to dismiss any complaint filed by appellant as untimely. Appellant concludes by stating that a complaint was filed on that day, and was thereafter improperly dismissed as untimely filed. In response, the agency argues that appellant's complaint was untimely filed, approximately two weeks after the expiration of the fifteen-day limitation period. The agency further argues that neither appellant nor her attorney was misled regarding the processing of her complaint. The agency also states that appellant asserted that extreme duress and placement on medical leave were contributing factors in her late filing, and argues that this assertion should be rejected. The record in this case contains an affidavit from the agency EEO Counselor who provided EEO counseling to appellant in the instant complaint. Therein, the EEO Counselor stated that on August 4, 1997, she contacted appellant to schedule a final interview; that appellant stated that the EEO Counselor should mail the Notice of Final Interview to her; and that appellant indicated that she had more information. The EEO Counselor indicated that she required copies of letters prepared by appellant, and was informed by appellant that the letters would be faxed to her. The EEO Counselor stated that she received the fax transmission from appellant, and discovered "numerous added issues, which [she] processed and added to her report." The EEO Counselor further stated that on August 8, 1997, she mailed the Notice of Final Interview, which was received by appellant's attorney on August 11, 1997. The EEO Counselor also stated that on August 12, 1997, she received a telephone call from appellant, who asked her if she had received the August 4, 1997 fax transmission; that she, the EEO Counselor, assured appellant that the additional issues were included in the report; and that appellant demanded that the EEO Counselor mail her another Notice of Final Interview. The EEO Counselor stated that she explained to appellant that because the EEO Counselor had included all appellant's requested issues, another Notice of Final Interview would not be issued. Finally, the EEO Counselor stated that she had reminded appellant that "she must file her formal complaint within the time limits indicated in the final interview letter." The record also contains another statement by the EEO Counselor, identified as a "Memorandum For Record" dated August 13, 1997. Therein, the EEO Counselor stated that on August 12, 1997, she received a call from appellant, who asked if the EEO Counselor received a fax sent on August 4, 1997. The EEO Counselor stated that she acknowledged receipt of the fax, and assured appellant that the issues were considered as having been the subject of EEO counseling, although they were not included in appellant's Notice of Final Interview. The EEO Counselor further stated that appellant indicated that this "was not good enough;" that she demanded another final interview letter; that she was informed that another Notice of Final Interview would not be issued; and that she was reminded that the "clock was ticking" regarding the filing of an EEO complaint. The EEO Counselor also stated that on August 13, 1997, she left a message on appellant's answering machine and "again reminded her that her 15 days to file a formal remained in effect." EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e), or (f). EEOC Regulation 29 C.F.R. §1614.107(b) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c). The record in this case indicates that appellant received a Notice of Final Interview on August 11, 1997, apprising her that she had fifteen days from the date of its receipt in which to file a formal complaint. We are unpersuaded by appellant's contention on appeal, wherein she asserts that the limitation period was extended as a result of the purported assurances of agency EEO officials that an amended Notice would be sent to her. Instead, we find the record supports a finding that an agency EEO official reiterated, in conversations subsequent to appellant's receipt of the Notice on August 11, 1997, that the fifteen-day limitation period for timely filing a complaint commenced on the date of receipt. Appellant has failed to present adequate justification, pursuant to 29 C.F.R. §1614.604(c) for extending the filing period. Accordingly, the agency's decision to dismiss appellant's complaint as untimely was proper and is AFFIRMED.<1> STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Oct. 29, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations 1 Because we affirm the agency's decision to dismiss appellant's formal complaint for the reason stated herein, we find it unnecessary to address the agency's decision to dismiss some of the allegations raised in appellant's complaint on alternative grounds.	[]	[ -0.09244381636381149, 0.06139930710196495, -0.012942243367433548, -0.001590984989888966, 0.045740239322185516, 0.0381670743227005, 0.04313625022768974, 0.032937996089458466, -0.031710099428892136, 0.07310385257005692, 0.0689668282866478, 0.003281358862295747, -0.01492943987250328, 0.005964...
53	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a45848.txt	01a45848.txt	TXT	text/plain	7,146	Emanuel N. Henderson v. Department of Homeland Security 01A45848 January 14, 2005 . Emanuel N. Henderson, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (U. S. Customs and Border Protection), Agency.	January 14, 2005	Appeal Number: 01A45848 Case Facts: Legal Analysis: Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for failing to raise a matter that was brought to the attention of an EEO Counselor and is not like or related to a matter that was brought to the attention of an EEO Counselor. In his formal complaint, complainant alleged the following: denial of position, victim of rage, denial of official time, denial of due process, denial of representation, attempted intimidation. The record reveals that complainant's representative initially contacted the agency's Formal Complaint Center (FCC) by letter on March 9, 2004. The FCC advised the representative to contact the local EEO office to request counseling and transmitted the correspondence to the EEO/Intake Officer. The record discloses that the EEO/Intake Officer contacted the representative on March 12, 2004, to schedule an intake interview. The record reveals that the representative requested that another EEO/Intake Officer be assigned to the complaint. The EEO/Intake Officer told complainant's representative that he was required to meet with complainant prior to assigning complainant to an EEO Counselor. Complainant's representative continued to object to such a meeting and contacted the EEO Desk Officer stating that the initial contact was sufficient. The EEO Desk Officer stated that it was mandatory for complainant to be interviewed by the EEO/Intake Officer. Complainant's representative requested, via e-mail, to be assigned to another EEO/Intake Officer or be given the right to file a formal complaint. The agency notified the complainant and his representative by mail that they had three days to schedule an intake interview. The record demonstrated that neither the complainant nor his representative responded, and the agency issued a right to file a formal complaint to complainant April 15, 2004. Thereafter, complainant filed a formal complaint on April 19, 2004. On April 30, 2004, the agency sent complainant a letter advising him that he was being given another fifteen calendar days to engage in EEO Counseling. The letter stated that complainant's failure to do so may result in the dismissal of his complaint. On appeal, complainant states that when he had previously tried to raise issues of discrimination with the EEO/Intake Officer, he was told that he had no case and the EEO/Intake Officer refused to perform EEO intake or allow him to participate in EEO counseling. Further, complainant states that he named the EEO/Intake Officer as a responsible management official in the instant complaint. The agency makes no contentions on appeal. The Commission is not persuaded by complainant's arguments that the Intake Officer would not permit complainant to participate in EEO counseling. Complainant has filed a formal EEO complaint in the past and has also appealed to the Commission. See Henderson v. Department of Homeland Security, EEOC Appeal No. 01A42129 (October 26, 2004). Complainant does not dispute that he was aware of the regulatory requirements for EEO counseling, and we note that even after the filing of his formal complaint, the agency granted him an additional fifteen days to arrange for counseling. Complainant refused to do so. Final Decision: Accordingly, the agency's final decision is AFFIRMED.	Emanuel N. Henderson v. Department of Homeland Security 01A45848 January 14, 2005 . Emanuel N. Henderson, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (U. S. Customs and Border Protection), Agency. Appeal No. 01A45848 Agency No. 04-158C/04-4146 DECISION Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for failing to raise a matter that was brought to the attention of an EEO Counselor and is not like or related to a matter that was brought to the attention of an EEO Counselor. In his formal complaint, complainant alleged the following: denial of position, victim of rage, denial of official time, denial of due process, denial of representation, attempted intimidation. The record reveals that complainant's representative initially contacted the agency's Formal Complaint Center (FCC) by letter on March 9, 2004. The FCC advised the representative to contact the local EEO office to request counseling and transmitted the correspondence to the EEO/Intake Officer. The record discloses that the EEO/Intake Officer contacted the representative on March 12, 2004, to schedule an intake interview. The record reveals that the representative requested that another EEO/Intake Officer be assigned to the complaint. The EEO/Intake Officer told complainant's representative that he was required to meet with complainant prior to assigning complainant to an EEO Counselor. Complainant's representative continued to object to such a meeting and contacted the EEO Desk Officer stating that the initial contact was sufficient. The EEO Desk Officer stated that it was mandatory for complainant to be interviewed by the EEO/Intake Officer. Complainant's representative requested, via e-mail, to be assigned to another EEO/Intake Officer or be given the right to file a formal complaint. The agency notified the complainant and his representative by mail that they had three days to schedule an intake interview. The record demonstrated that neither the complainant nor his representative responded, and the agency issued a right to file a formal complaint to complainant April 15, 2004. Thereafter, complainant filed a formal complaint on April 19, 2004. On April 30, 2004, the agency sent complainant a letter advising him that he was being given another fifteen calendar days to engage in EEO Counseling. The letter stated that complainant's failure to do so may result in the dismissal of his complaint. On appeal, complainant states that when he had previously tried to raise issues of discrimination with the EEO/Intake Officer, he was told that he had no case and the EEO/Intake Officer refused to perform EEO intake or allow him to participate in EEO counseling. Further, complainant states that he named the EEO/Intake Officer as a responsible management official in the instant complaint. The agency makes no contentions on appeal. The Commission is not persuaded by complainant's arguments that the Intake Officer would not permit complainant to participate in EEO counseling. Complainant has filed a formal EEO complaint in the past and has also appealed to the Commission. See Henderson v. Department of Homeland Security, EEOC Appeal No. 01A42129 (October 26, 2004). Complainant does not dispute that he was aware of the regulatory requirements for EEO counseling, and we note that even after the filing of his formal complaint, the agency granted him an additional fifteen days to arrange for counseling. Complainant refused to do so. Accordingly, the agency's final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 January 14, 2005 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.03157414495944977, 0.08321721851825714, -0.010102828964591026, 0.0338873565196991, 0.06157810240983963, 0.030183888971805573, 0.042915672063827515, 0.005270917434245348, -0.008874578401446342, 0.013928594067692757, 0.07079381495714188, -0.05170673504471779, -0.012158460915088654, 0.0217...
54	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140346.r.txt	0120140346.r.txt	TXT	text/plain	16,738		October 4, 2013	Appeal Number: 0120140346 Background: During the period at issue, Complainant worked as a Restoration Technician Trainee at the Agency's James J. Peters Medical Center facility in Bronx, New York. On July 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and religion (Judaism). In its final decision dated October 4, 2013, the Agency determined that the formal complaint was comprised of the following claims: Whether Complainant was subjected to a hostile work environment as evidenced by the following events: 1. From July 2012 through October 2012, the [named Dental Practice Chief] and the Trainee Program Supervisor, S1] regularly failed to provide Complainant with material and training in maxillofacial procedures; 2. On August 30, 2012, [S1] pointing at Complainant made several inappropriate anti-Semitic comments. Additionally, [S1] made inappropriate comments and drew several images of circles and obelisks, stating "that is the penis...that is the vagina...;" 3. On September 26, 2012, on Yom Kippur, [S1] assigned Complainant an usually large number of laboratory cases; 4. On September 28, 2012, [S1] refused to provide Complainant training, demanded she perform a moulage task although never taught the technique, and made numerous inappropriate comments about women; 5. On October 4, 2012, [S1] refused to provide Complainant any training and made several anti-Semitic remarks; 6. On October 22, 2012, [S1] threatened and taunted Complainant with stories about a sexual predator; 7. On October 23, 2012, [S1] refused to train Complainant, told her to "figure it out yourself", directed her to "experiment on veterans" and compared her to his wife in a derogatory manner. [S1] then compared Complainant to another VA employee while expressing "violent fantasies" about that employee. [S1] later laughed when another employee asked if he could "make impressions" of Complainant's breasts; and 8. On November 13, 2012, Complainant constructively resigned from her position.1 The Agency found that incidents 1, 3-5, and 7-8 are discrete acts and were not raised within the applicable time limit. Thus, the Agency dismissed these incidents on the grounds of untimely EEO Counselor contact. However, the Agency did include these incidents as part of Complainant's overall harassment claim. The Agency found that the incidents collectively set forth an actionable harassment claim. However, the Agency dismissed Complainant's hostile work environment claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 18, 2013, outside of the applicable time period. In addition, the Agency stated: In reply to our request for an explanation for the delay in contacting an EEO Counselor, [Complainant] stated that [she] believed contacting the facility's EEO program Manager on November 14, 2012, met the criteria for timely contact. Since the Office of Resolution Management's (ORM's) inception in 1997, ORM removed the responsibility for processing EEO complaints from individual facility EEO Program Managers and centralized the responsibility under ORM. Because of this reorganization, the facility EEO Program Managers are not logically connected to the EEO complaint process; and therefore, their only obligation is to properly advise a prospective complainant on how to exercise their EEO rights, including who to contact, which...is ORM. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's final decision dismissing her complaint on the grounds of untimely EEO Counselor contact. Complainant asserts that she met with her facility's EEO Officer/Manager (EEO1) in November 2012, and was not informed that she would need to contact ORM to initiate an EEO complaint. In addition, Complainant submits Agency materials (a copy of the facility's EEO poster and a copy of a portion of the facility's employee handbook) indicating that EEO1 is one of the proper contacts to initiate the EEO complaint process. Complainant is also requesting that her complaint be amended to include additional claims, including a reprisal claim. Legal Analysis: 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant's contact in November 2012, with EEO1 does not constitute the date on which Complainant initiated EEO contact. We find that the facility EEO poster, provided by Complainant on appeal, does not clearly set forth the proper contact to initiate the EEO complaint process. The EEO poster lists the 45-day time limit and provides the telephone numbers for both ORM and EEO1. We note that the poster also has the name of EEO1 and his picture. In addition, Complainant submits a copy of a portion of the employee handbook for this particular facility. Therein, under the section entitled "EEO Discrimination Complaint Process" the handbook informs employees to initiate the EEO process by contacting ORM or the Medical Center's EEO Officer. The record also contains training materials on the topic of sexual harassment. The materials contain EEO1's name, picture and phone number as the contact for more information or consultation on this topic. 2 Based on these circumstances, we find that Complainant's November 2012 contact with EEO1 constituted her initial EEO contact date. As set forth above, Complainant is alleging a hostile work environment claim. The record reflects that several of the alleged incidents occurred within the 45 day period preceding her November 2012 contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-72, (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Thus, Complainant timely initiated contact with respect to her hostile work environment claim. Finally, Complainant seeks to amend the formal complaint to include additional claims. If Complainant wishes to amend her complaint to include additional claims, she should put this request in writing to the Agency's (VA) EEO Director or Complaints Manager. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO) MD-110, Chap. 5, Sect III(B) (1999).	Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140346 Agency No. 200H-0526-2013103489 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 4, 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. BACKGROUND During the period at issue, Complainant worked as a Restoration Technician Trainee at the Agency's James J. Peters Medical Center facility in Bronx, New York. On July 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and religion (Judaism). In its final decision dated October 4, 2013, the Agency determined that the formal complaint was comprised of the following claims: Whether Complainant was subjected to a hostile work environment as evidenced by the following events: 1. From July 2012 through October 2012, the [named Dental Practice Chief] and the Trainee Program Supervisor, S1] regularly failed to provide Complainant with material and training in maxillofacial procedures; 2. On August 30, 2012, [S1] pointing at Complainant made several inappropriate anti-Semitic comments. Additionally, [S1] made inappropriate comments and drew several images of circles and obelisks, stating "that is the penis...that is the vagina...;" 3. On September 26, 2012, on Yom Kippur, [S1] assigned Complainant an usually large number of laboratory cases; 4. On September 28, 2012, [S1] refused to provide Complainant training, demanded she perform a moulage task although never taught the technique, and made numerous inappropriate comments about women; 5. On October 4, 2012, [S1] refused to provide Complainant any training and made several anti-Semitic remarks; 6. On October 22, 2012, [S1] threatened and taunted Complainant with stories about a sexual predator; 7. On October 23, 2012, [S1] refused to train Complainant, told her to "figure it out yourself", directed her to "experiment on veterans" and compared her to his wife in a derogatory manner. [S1] then compared Complainant to another VA employee while expressing "violent fantasies" about that employee. [S1] later laughed when another employee asked if he could "make impressions" of Complainant's breasts; and 8. On November 13, 2012, Complainant constructively resigned from her position.1 The Agency found that incidents 1, 3-5, and 7-8 are discrete acts and were not raised within the applicable time limit. Thus, the Agency dismissed these incidents on the grounds of untimely EEO Counselor contact. However, the Agency did include these incidents as part of Complainant's overall harassment claim. The Agency found that the incidents collectively set forth an actionable harassment claim. However, the Agency dismissed Complainant's hostile work environment claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 18, 2013, outside of the applicable time period. In addition, the Agency stated: In reply to our request for an explanation for the delay in contacting an EEO Counselor, [Complainant] stated that [she] believed contacting the facility's EEO program Manager on November 14, 2012, met the criteria for timely contact. Since the Office of Resolution Management's (ORM's) inception in 1997, ORM removed the responsibility for processing EEO complaints from individual facility EEO Program Managers and centralized the responsibility under ORM. Because of this reorganization, the facility EEO Program Managers are not logically connected to the EEO complaint process; and therefore, their only obligation is to properly advise a prospective complainant on how to exercise their EEO rights, including who to contact, which...is ORM. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's final decision dismissing her complaint on the grounds of untimely EEO Counselor contact. Complainant asserts that she met with her facility's EEO Officer/Manager (EEO1) in November 2012, and was not informed that she would need to contact ORM to initiate an EEO complaint. In addition, Complainant submits Agency materials (a copy of the facility's EEO poster and a copy of a portion of the facility's employee handbook) indicating that EEO1 is one of the proper contacts to initiate the EEO complaint process. Complainant is also requesting that her complaint be amended to include additional claims, including a reprisal claim. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant is alleging that she was subjected to a hostile work environment which culminated in her constructive resignation. Thus, all the incidents set forth above are encompassed as part of Complainant's hostile work environment claim. 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant's contact in November 2012, with EEO1 does not constitute the date on which Complainant initiated EEO contact. We find that the facility EEO poster, provided by Complainant on appeal, does not clearly set forth the proper contact to initiate the EEO complaint process. The EEO poster lists the 45-day time limit and provides the telephone numbers for both ORM and EEO1. We note that the poster also has the name of EEO1 and his picture. In addition, Complainant submits a copy of a portion of the employee handbook for this particular facility. Therein, under the section entitled "EEO Discrimination Complaint Process" the handbook informs employees to initiate the EEO process by contacting ORM or the Medical Center's EEO Officer. The record also contains training materials on the topic of sexual harassment. The materials contain EEO1's name, picture and phone number as the contact for more information or consultation on this topic. 2 Based on these circumstances, we find that Complainant's November 2012 contact with EEO1 constituted her initial EEO contact date. As set forth above, Complainant is alleging a hostile work environment claim. The record reflects that several of the alleged incidents occurred within the 45 day period preceding her November 2012 contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-72, (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Thus, Complainant timely initiated contact with respect to her hostile work environment claim. Finally, Complainant seeks to amend the formal complaint to include additional claims. If Complainant wishes to amend her complaint to include additional claims, she should put this request in writing to the Agency's (VA) EEO Director or Complaints Manager. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO) MD-110, Chap. 5, Sect III(B) (1999). Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency 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 (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 October 3, 2014 __________________ Date 1 We note that the record contains a letter from Complainant dated November 13, 2012, in which she resigned from her position. The record also contains a Notification of Personnel Action form for Complainant which lists Complainant's effective date of her resignation as January 11, 2013. 2 We strongly advise the Agency to consider revising the EEO facility poster and the EEO facility employee handbook at issue to clearly indicate the proper contact for initiating the EEO complaint process. In Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140863 (May 6, 2014), we also advised the Agency to consider revising this facility's EEO poster. The complainant in EEOC Appeal No. 0120140863 was the co-worker of the Complainant in the instant matter. We again advise the Agency to consider reviewing all EEO training material used at this facility to ensure that such material clearly indicates the proper contact for initiating the EEO complaint process. ------------------------------------------------------------ ------------------------------------------------------------	[ "Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)", "In Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140863 (May 6, 2014)", "536 U.S. 101", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614....	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55	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A61065.txt	01A61065.txt	TXT	text/plain	9,857	Alicia C. Lafever, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.	October 24, 2005	Appeal Number: 01A61065 Case Facts: The complainant filed a timely appeal with this Commission from the agency's decision dated October 24, 2005, 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. The complainant claimed that she was subjected to discrimination based on her sex (female) when on April 8, 2002 she was informed that she was not selected for the position of Chief Ranger, GS-0025-11, advertised under vacancy announcement SEUF-MP-02-03. She contended that she believed she was discriminated against based on her marital status and gender when she learned that she was not selected. She explained that in her job interview she was asked questions about her marital status, such as how having the job and living 2.5 hours from her husband would affect her marital life. The complainant had been serving as a collateral duty EEO counselor since June 2000. According to the complainant, she contacted an EEO supervisor a couple of days after April 8, 2002 and said she believed that she was discriminated against based on her marital status and gender when she was not selected. The complainant indicated that the EEO supervisor responded that marital status was not a protected basis, this was not a gender case, and if she filed a complaint it would not go forward. The agency does not deny this. The complainant indicated that as time went on, her belief of gender discrimination increased. She stated that on December 12, 2002, she asked the selecting official why she was not chosen, and was told that the selectee (male) had PowerPoint experience, something which the complainant believed was not persuasive. Then, on January 24, 2003, the complainant learned that the selectee was taking five months of training with the Federal Law Enforcement Training Center, something which she already had, in addition to years of such experience. She viewed this as significant for the job. The complainant stated that she attended an EEO refresher course on June 17 through 19, 2003, and in response to her inquiry regarding the interview job questions what the EEO supervisor said, the main presenter advised this was definitely an EEO gender issue, and the advice she got was wrong. The complainant indicated that this presenter had very good credentials. The complainant stated that she was prompted to seek EEO counseling after taking an interview skills course for supervisors on March 7, 2005. The interview course went over illegal and legal questions, and she stated that she learned her interview questions were illegal. With regard to the instant complaint, the complainant contacted an EEO counselor on April 11, 2005. Legal Analysis: 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The complainant contends that she contacted an EEO counselor within 45 calendar days of when she learned what types of job interview questions were illegal, as well as contacting the EEO supervisor within days after learning she was not selected for the Chief Ranger position. The EEO supervisor wrongly discouraged the complainant from filing an EEO claim. Nevertheless, in this case, we find that this is insufficient reason to find that the complainant timely contacted an EEO counselor. Given that the complainant was an EEO counselor, we deem that she knew that she had a right to file an EEO complaint and have it processed, and understood the EEO supervisor's advice to mean it was unlikely she would prevail. While this would justify some delay in pursuing EEO contact for the purpose of filing an EEO complaint, it does not justify a nearly three year delay, given the circumstances of this case. With regard to her complaint, the complainant acknowledges that events in late 2002 and early 2003 bolstered her belief that she was a victim of gender discrimination. Then, with regard to her complaint, in June 2003 she indicated that she was informed by a trusted source that she had an EEO gender claim and got the wrong advice from the EEO supervisor. Given the above, and that three years passed since her first contact with an EEO official before contacting an EEO counselor in April 2005 for the purpose of pursing an EEO complaint, we decline to construe the first EEO contact as being a timely initiation of EEO counseling. She effectively withdrew the first contact by waiting three years, despite the above events. Final Decision: Accordingly, the agency's decision dismissing the complainant's complaint is affirmed.	Alicia C. Lafever, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency. Appeal No. 01A61065 Agency No. FNP-2005-049 DECISION The complainant filed a timely appeal with this Commission from the agency's decision dated October 24, 2005, 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. The complainant claimed that she was subjected to discrimination based on her sex (female) when on April 8, 2002 she was informed that she was not selected for the position of Chief Ranger, GS-0025-11, advertised under vacancy announcement SEUF-MP-02-03. She contended that she believed she was discriminated against based on her marital status and gender when she learned that she was not selected. She explained that in her job interview she was asked questions about her marital status, such as how having the job and living 2.5 hours from her husband would affect her marital life. The complainant had been serving as a collateral duty EEO counselor since June 2000. According to the complainant, she contacted an EEO supervisor a couple of days after April 8, 2002 and said she believed that she was discriminated against based on her marital status and gender when she was not selected. The complainant indicated that the EEO supervisor responded that marital status was not a protected basis, this was not a gender case, and if she filed a complaint it would not go forward. The agency does not deny this. The complainant indicated that as time went on, her belief of gender discrimination increased. She stated that on December 12, 2002, she asked the selecting official why she was not chosen, and was told that the selectee (male) had PowerPoint experience, something which the complainant believed was not persuasive. Then, on January 24, 2003, the complainant learned that the selectee was taking five months of training with the Federal Law Enforcement Training Center, something which she already had, in addition to years of such experience. She viewed this as significant for the job. The complainant stated that she attended an EEO refresher course on June 17 through 19, 2003, and in response to her inquiry regarding the interview job questions what the EEO supervisor said, the main presenter advised this was definitely an EEO gender issue, and the advice she got was wrong. The complainant indicated that this presenter had very good credentials. The complainant stated that she was prompted to seek EEO counseling after taking an interview skills course for supervisors on March 7, 2005. The interview course went over illegal and legal questions, and she stated that she learned her interview questions were illegal. With regard to the instant complaint, the complainant contacted an EEO counselor on April 11, 2005. 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The complainant contends that she contacted an EEO counselor within 45 calendar days of when she learned what types of job interview questions were illegal, as well as contacting the EEO supervisor within days after learning she was not selected for the Chief Ranger position. The EEO supervisor wrongly discouraged the complainant from filing an EEO claim. Nevertheless, in this case, we find that this is insufficient reason to find that the complainant timely contacted an EEO counselor. Given that the complainant was an EEO counselor, we deem that she knew that she had a right to file an EEO complaint and have it processed, and understood the EEO supervisor's advice to mean it was unlikely she would prevail. While this would justify some delay in pursuing EEO contact for the purpose of filing an EEO complaint, it does not justify a nearly three year delay, given the circumstances of this case. With regard to her complaint, the complainant acknowledges that events in late 2002 and early 2003 bolstered her belief that she was a victim of gender discrimination. Then, with regard to her complaint, in June 2003 she indicated that she was informed by a trusted source that she had an EEO gender claim and got the wrong advice from the EEO supervisor. Given the above, and that three years passed since her first contact with an EEO official before contacting an EEO counselor in April 2005 for the purpose of pursing an EEO complaint, we decline to construe the first EEO contact as being a timely initiation of EEO counseling. She effectively withdrew the first contact by waiting three years, despite the above events. Accordingly, the agency's decision dismissing the complainant's complaint is affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 May 24, 2006 __________________ Date	[ "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.09339082986116409, 0.0054456391371786594, -0.036890506744384766, 0.050843849778175354, 0.01823924481868744, 0.07309215515851974, 0.027087904512882233, -0.001630321959964931, -0.0541081428527832, 0.07850942760705948, 0.05381670594215393, -0.01421801932156086, -0.007791623938828707, -0.05...
56	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976234_r.txt	01976234_r.txt	TXT	text/plain	19,350		August 6, 1997	Appeal Number: 01976234 Case Facts: On August 6, 1997, appellant filed a timely appeal with this Commission from a July 15, 1997 final agency decision, dismissing one allegation of her complaint for failure to contact an EEO Counselor in a timely manner. The allegation dismissed from appellant's November 17, 1995 complaint was whether appellant was discriminated against on the bases of race and in retaliation when she was not selected for a position in December 1994 as a special agent. In dismissing the allegation for untimely EEO contact, the agency stated that although appellant suspected discrimination in December 1994, she failed to pursue EEO counseling until September 6, 1995, noting that appellant was in contact with an EEO Counselor in December 1994, January 11, 1995, July 9, 1995, and August 18, 1995.<1> The agency also stated that even if appellant contacted the EEO office in a timely manner, she did not pursue her claim with due diligence and the doctrine of laches should apply. The agency further stated that the allegation did not constitute a continuing violation. The agency also denied that appellant was advised by the EEO Counselor that her claim of a discriminatory non-selection could be raised in the future. As an initial matter, the Commission notes that the dismissed allegation was the subject of a prior appeal. In an April 11, 1996 final agency decision (FAD-1), the agency dismissed the allegation on the grounds of untimely EEO contact. In FAD-1, the agency stated that appellant was aware that her non-selection was discriminatory in December 1994 and, therefore, her September 1995 contact was untimely. The agency rejected appellant's explanation that she was advised by an EEO Counselor in January 1995, that she could include the non-selection in a later complaint, stating therein that the EEO Counselor had communicated to the agency that appellant was counseled on an issue other than her non-selection and that appellant made a decision not to pursue her formal complaint. Appellant appealed FAD-1 to the Commission. Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997). In reversing FAD-1 and remanding the allegation to the agency for a supplemental investigation, the Commission noted that the agency failed to provide a statement from the EEO Counselor with whom appellant met in January 1995. The Commission also noted that the record did not include evidence of the EEO Counselor's notes regarding the contact in January 1995. The agency was ordered, among other things, to obtain the affidavit of the EEO Counselor with whom appellant met in January 1995, including the nature of the discussions, issues discussed and any advice provided. The EEO Counselor was also to provide any notes she relied upon to prepare the affidavit. The agency was also ordered to supplement the record with a copy of any official record pertaining to appellant's January 1995 contact. On remand, the agency obtained a sworn declaration from the EEO Counselor. Therein, the Counselor stated that she counseled appellant on "two different EEO-related issues"<2> but that the counseling notes for the case were destroyed.<3> The Counselor also stated that as she recalled, the non-selection was beyond the 45-day time period for timely contact.<4> The EEO Counselor also stated that appellant discussed the non-selection with her and that the non-selection was not the basis of the complaint, but was raised in the context of demonstrating a series of events that led appellant to feel discriminated against.<5> The Counselor stated also that she could not recall advising appellant that she could use non-selection as the basis of a future complaint. The record also contains a June 27, 1997 affidavit of appellant, wherein she stated that she initiated EEO contact in December 1994, regarding the non-selection and, also, that she met with an EEO Counselor on January 11, 1995. Appellant's affidavit reflects that she was informed by the EEO Counselor on January 11, 1995, that she could include the issue of her non-selection in a future complaint. Appellant stated that, based on the EEO Counselor's statement, she believed that she could raise the non-selection issue later. Appellant denied that the EEO Counselor advised her that her non-selection could only be raised as background information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. Legal Analysis: the Commission notes that the dismissed allegation was the subject of a prior appeal. In an April 11, 1996 final agency decision (FAD-1), the agency dismissed the allegation on the grounds of untimely EEO contact. In FAD-1, the agency stated that appellant was aware that her non-selection was discriminatory in December 1994 and, therefore, her September 1995 contact was untimely. The agency rejected appellant's explanation that she was advised by an EEO Counselor in January 1995, that she could include the non-selection in a later complaint, stating therein that the EEO Counselor had communicated to the agency that appellant was counseled on an issue other than her non-selection and that appellant made a decision not to pursue her formal complaint. Appellant appealed FAD-1 to the Commission. Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997). In reversing FAD-1 and remanding the allegation to the agency for a supplemental investigation, the Commission noted that the agency failed to provide a statement from the EEO Counselor with whom appellant met in January 1995. The Commission also noted that the record did not include evidence of the EEO Counselor's notes regarding the contact in January 1995. The agency was ordered, among other things, to obtain the affidavit of the EEO Counselor with whom appellant met in January 1995, including the nature of the discussions, issues discussed and any advice provided. The EEO Counselor was also to provide any notes she relied upon to prepare the affidavit. The agency was also ordered to supplement the record with a copy of any official record pertaining to appellant's January 1995 contact. On remand, the agency obtained a sworn declaration from the EEO Counselor. Therein, the Counselor stated that she counseled appellant on "two different EEO-related issues"<2> but that the counseling notes for the case were destroyed.<3> The Counselor also stated that as she recalled, the non-selection was beyond the 45-day time period for timely contact.<4> The EEO Counselor also stated that appellant discussed the non-selection with her and that the non-selection was not the basis of the complaint, but was raised in the context of demonstrating a series of events that led appellant to feel discriminated against.<5> The Counselor stated also that she could not recall advising appellant that she could use non-selection as the basis of a future complaint. The record also contains a June 27, 1997 affidavit of appellant, wherein she stated that she initiated EEO contact in December 1994, regarding the non-selection and, also, that she met with an EEO Counselor on January 11, 1995. Appellant's affidavit reflects that she was informed by the EEO Counselor on January 11, 1995, that she could include the issue of her non-selection in a future complaint. Appellant stated that, based on the EEO Counselor's statement, she believed that she could raise the non-selection issue later. Appellant denied that the EEO Counselor advised her that her non-selection could only be raised as background information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person initiate contact with a 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 Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered until a complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent. Although careful compliance with the time limits generally is required of parties alleging discrimination, Commission regulations further provide that the 45-day period may be extended where the individual shows that he or she was not notified of the time limit and was not otherwise aware of it, that he or she did not know and reasonably should not have been aware that the alleged discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting an EEO Counselor within the time limit, or for other reasons deemed sufficient by the agency or the Commission. See 29 C.F.R. §1614.105(a)(2). In addition, EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find, based on appellant's affidavit, that appellant first contacted an EEO Counselor in December 1994 and on January 11, 1995, regarding her December 1994 non-selection. In addition, the EEO Counselor herself admits in her declaration that the issue of the non-selection was raised and the agency admits on appeal that appellant timely sought counseling in December 1994 and January 11, 1995.	Teresa E. Porter, ) Appellant, ) ) Appeal No. 01976234 v. ) Agency No. 96-1052 ) Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) Agency. ) ) DECISION On August 6, 1997, appellant filed a timely appeal with this Commission from a July 15, 1997 final agency decision, dismissing one allegation of her complaint for failure to contact an EEO Counselor in a timely manner. The allegation dismissed from appellant's November 17, 1995 complaint was whether appellant was discriminated against on the bases of race and in retaliation when she was not selected for a position in December 1994 as a special agent. In dismissing the allegation for untimely EEO contact, the agency stated that although appellant suspected discrimination in December 1994, she failed to pursue EEO counseling until September 6, 1995, noting that appellant was in contact with an EEO Counselor in December 1994, January 11, 1995, July 9, 1995, and August 18, 1995.<1> The agency also stated that even if appellant contacted the EEO office in a timely manner, she did not pursue her claim with due diligence and the doctrine of laches should apply. The agency further stated that the allegation did not constitute a continuing violation. The agency also denied that appellant was advised by the EEO Counselor that her claim of a discriminatory non-selection could be raised in the future. As an initial matter, the Commission notes that the dismissed allegation was the subject of a prior appeal. In an April 11, 1996 final agency decision (FAD-1), the agency dismissed the allegation on the grounds of untimely EEO contact. In FAD-1, the agency stated that appellant was aware that her non-selection was discriminatory in December 1994 and, therefore, her September 1995 contact was untimely. The agency rejected appellant's explanation that she was advised by an EEO Counselor in January 1995, that she could include the non-selection in a later complaint, stating therein that the EEO Counselor had communicated to the agency that appellant was counseled on an issue other than her non-selection and that appellant made a decision not to pursue her formal complaint. Appellant appealed FAD-1 to the Commission. Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997). In reversing FAD-1 and remanding the allegation to the agency for a supplemental investigation, the Commission noted that the agency failed to provide a statement from the EEO Counselor with whom appellant met in January 1995. The Commission also noted that the record did not include evidence of the EEO Counselor's notes regarding the contact in January 1995. The agency was ordered, among other things, to obtain the affidavit of the EEO Counselor with whom appellant met in January 1995, including the nature of the discussions, issues discussed and any advice provided. The EEO Counselor was also to provide any notes she relied upon to prepare the affidavit. The agency was also ordered to supplement the record with a copy of any official record pertaining to appellant's January 1995 contact. On remand, the agency obtained a sworn declaration from the EEO Counselor. Therein, the Counselor stated that she counseled appellant on "two different EEO-related issues"<2> but that the counseling notes for the case were destroyed.<3> The Counselor also stated that as she recalled, the non-selection was beyond the 45-day time period for timely contact.<4> The EEO Counselor also stated that appellant discussed the non-selection with her and that the non-selection was not the basis of the complaint, but was raised in the context of demonstrating a series of events that led appellant to feel discriminated against.<5> The Counselor stated also that she could not recall advising appellant that she could use non-selection as the basis of a future complaint. The record also contains a June 27, 1997 affidavit of appellant, wherein she stated that she initiated EEO contact in December 1994, regarding the non-selection and, also, that she met with an EEO Counselor on January 11, 1995. Appellant's affidavit reflects that she was informed by the EEO Counselor on January 11, 1995, that she could include the issue of her non-selection in a future complaint. Appellant stated that, based on the EEO Counselor's statement, she believed that she could raise the non-selection issue later. Appellant denied that the EEO Counselor advised her that her non-selection could only be raised as background information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person initiate contact with a 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 Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered until a complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent. Although careful compliance with the time limits generally is required of parties alleging discrimination, Commission regulations further provide that the 45-day period may be extended where the individual shows that he or she was not notified of the time limit and was not otherwise aware of it, that he or she did not know and reasonably should not have been aware that the alleged discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting an EEO Counselor within the time limit, or for other reasons deemed sufficient by the agency or the Commission. See 29 C.F.R. §1614.105(a)(2). In addition, EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find, based on appellant's affidavit, that appellant first contacted an EEO Counselor in December 1994 and on January 11, 1995, regarding her December 1994 non-selection. In addition, the EEO Counselor herself admits in her declaration that the issue of the non-selection was raised and the agency admits on appeal that appellant timely sought counseling in December 1994 and January 11, 1995. Accordingly, appellant's contact was within the 45 days required for timely Counselor contact. However, what the agency is in effect asserting is that although appellant made timely contact, she did not evidence an intent to pursue the EEO process until September 6, 1995, which was beyond the requisite 45-day limitations period. The Commission has held that a complainant satisfies the criterion of Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996) Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989) Dumaguindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We find that appellant intended to pursue the non-selection issue in January 1995. However, she did not do so until September 1995, approximately six months later, because she relied on the EEO Counselor's representation in January 1995, that she could pursue the allegation in the future. The Commission has held that agency actions that mislead an individual concerning his or her EEO rights will toll the limitations period. See Herrera v. U.S. Postal Service, EEOC Request No. 05891351 (September 28, 1989) (the Commission found that it would allow the "tolling of time requirements when an agency lulls a complainant into taking no action or actively misleads or prevents a complainant from asserting his rights"); Ong v. Department of the Army, EEOC Request No. 05880290 (August 8, 1988). Although the agency denies that appellant was misled by the EEO Counselor, we find appellant's affidavit more persuasive than the declaration of the EEO Counselor which is tenuous and appears to be purposefully vague. Furthermore, in her declaration, the EEO Counselor did not deny that she informed appellant that she could pursue the allegation later. The EEO Counselor stated only that she could not recall if she had done so. The Commission has held that, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The agency has failed to do so. Consistent with our discussion herein, the final agency decision dismissing appellant's non-selection allegation for untimely EEO contact is REVERSED and the allegation is REMANDED to the agency for further processing. ORDER The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegation within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request. A copy of the agency's letter of acknowledgement to appellant 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 (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: April 2, 1999 DATE Ronnie Blumenthal, Director 1The agency did not provide any EEO records regarding the alleged December 1994, July 9, 1995, and August 18, 1995 contacts. 2The EEO Counselor did not identify the two issues. 3The EEO Counselor did not provide any explanation why or when her "notes" were destroyed. 4The EEO Counselor did not elaborate further on this conclusion. 5The EEO Counselor does not indicate specifically when the non-selection was discussed but as noted hereinbefore, the agency was specifically ordered by the Commission in its prior decision to obtain an affidavit from the Counselor with whom appellant met in January 1995. 6The agency asserts for the first time on appeal that appellant's formal complaint was untimely filed, stating that appellant should have filed a formal complaint in December 1994 and January 1995 after seeking EEO counseling. Since this argument was not raised or addressed by the agency in its final decision when it dismissed the allegation, it is improper for the agency to raise this argument on appeal. Moreover, there is no evidence in the record that appellant was issued a notice of right to file a formal complaint by the agency in either December 1994 or January 1995.	[ "Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997)", "Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988)", "Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)", ...	[ -0.05293787270784378, 0.10601940751075745, 0.0024727163836359978, -0.018587175756692886, 0.0888810083270073, 0.0186433307826519, 0.051372215151786804, 0.09846081584692001, -0.01732083596289158, 0.038019225001335144, 0.05595492944121361, -0.055301543325185776, -0.027625015005469322, -0.0224...
57	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976234.txt	01976234.txt	TXT	text/plain	19,317		April 2, 1999	Appeal Number: 01976234 Background: information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person initiate contact with a 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 Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered until a complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent. Although careful compliance with the time limits generally is required of parties alleging discrimination, Commission regulations further provide that the 45-day period may be extended where the individual shows that he or she was not notified of the time limit and was not otherwise aware of it, that he or she did not know and reasonably should not have been aware that the alleged discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting an EEO Counselor within the time limit, or for other reasons deemed sufficient by the agency or the Commission. See 29 C.F.R. §1614.105(a)(2). In addition, EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find, based on appellant's affidavit, that appellant first contacted an EEO Counselor in December 1994 and on January 11, 1995, regarding her December 1994 non-selection. In addition, the EEO Counselor herself admits in her declaration that the issue of the non-selection was raised and the agency admits on appeal that appellant timely sought counseling in December 1994 and January 11, 1995. Accordingly, appellant's contact was within the 45 days required for timely Counselor contact. However, what the agency is in effect asserting is that although appellant made timely contact, she did not evidence an intent to pursue the EEO process until September 6, 1995, which was beyond the requisite 45-day limitations period. The Commission has held that a complainant satisfies the criterion of Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996) Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989) Dumaguindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We find that appellant intended to pursue the non-selection issue in January 1995. However, she did not do so until September 1995, approximately six months later, because she relied on the EEO Counselor's representation in January 1995, that she could pursue the allegation in the future. The Commission has held that agency actions that mislead an individual concerning his or her EEO rights will toll the limitations period. See Herrera v. U.S. Postal Service, EEOC Request No. 05891351 (September 28, 1989) (the Commission found that it would allow the "tolling of time requirements when an agency lulls a complainant into taking no action or actively misleads or prevents a complainant from asserting his rights"); Ong v. Department of the Army, EEOC Request No. 05880290 (August 8, 1988). Although the agency denies that appellant was misled by the EEO Counselor, we find appellant's affidavit more persuasive than the declaration of the EEO Counselor which is tenuous and appears to be purposefully vague. Furthermore, in her declaration, the EEO Counselor did not deny that she informed appellant that she could pursue the allegation later. The EEO Counselor stated only that she could not recall if she had done so. The Commission has held that, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The agency has failed to do so. Consistent with our discussion herein, the final agency decision dismissing appellant's non-selection allegation for untimely EEO contact is REVERSED and the allegation is REMANDED to the agency for further processing. ORDER The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegation within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request. A copy of the agency's letter of acknowledgement to appellant 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 (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this Legal Analysis: the Commission notes that the dismissed allegation was the subject of a prior appeal. In an April 11, 1996 final agency decision (FAD-1), the agency dismissed the allegation on the grounds of untimely EEO contact. In FAD-1, the agency stated that appellant was aware that her non-selection was discriminatory in December 1994 and, therefore, her September 1995 contact was untimely. The agency rejected appellant's explanation that she was advised by an EEO Counselor in January 1995, that she could include the non-selection in a later complaint, stating therein that the EEO Counselor had communicated to the agency that appellant was counseled on an issue other than her non-selection and that appellant made a decision not to pursue her formal complaint. Appellant appealed FAD-1 to the Commission. Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997). In reversing FAD-1 and remanding the allegation to the agency for a supplemental investigation, the Commission noted that the agency failed to provide a statement from the EEO Counselor with whom appellant met in January 1995. The Commission also noted that the record did not include evidence of the EEO Counselor's notes regarding the contact in January 1995. The agency was ordered, among other things, to obtain the affidavit of the EEO Counselor with whom appellant met in January 1995, including the nature of the discussions, issues discussed and any advice provided. The EEO Counselor was also to provide any notes she relied upon to prepare the affidavit. The agency was also ordered to supplement the record with a copy of any official record pertaining to appellant's January 1995 contact. On remand, the agency obtained a sworn declaration from the EEO Counselor. Therein, the Counselor stated that she counseled appellant on "two different EEO-related issues"<2> but that the counseling notes for the case were destroyed.<3> The Counselor also stated that as she recalled, the non-selection was beyond the 45-day time period for timely contact.<4> The EEO Counselor also stated that appellant discussed the non-selection with her and that the non-selection was not the basis of the complaint, but was raised in the context of demonstrating a series of events that led appellant to feel discriminated against.<5> The Counselor stated also that she could not recall advising appellant that she could use non-selection as the basis of a future complaint. The record also contains a June 27, 1997 affidavit of appellant, wherein she stated that she initiated EEO contact in December 1994, regarding the non-selection and, also, that she met with an EEO Counselor on January 11, 1995. Appellant's affidavit reflects that she was informed by the EEO Counselor on January 11, 1995, that she could include the issue of her non-selection in a future complaint. Appellant stated that, based on the EEO Counselor's statement, she believed that she could raise the non-selection issue later. Appellant denied that the EEO Counselor advised her that her non-selection could only be raised as background information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person initiate contact with a 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 Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered until a complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent. Although careful compliance with the time limits generally is required of parties alleging discrimination, Commission regulations further provide that the 45-day period may be extended where the individual shows that he or she was not notified of the time limit and was not otherwise aware of it, that he or she did not know and reasonably should not have been aware that the alleged discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting an EEO Counselor within the time limit, or for other reasons deemed sufficient by the agency or the Commission. See 29 C.F.R. §1614.105(a)(2). In addition, EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find, based on appellant's affidavit, that appellant first contacted an EEO Counselor in December 1994 and on January 11, 1995, regarding her December 1994 non-selection. In addition, the EEO Counselor herself admits in her declaration that the issue of the non-selection was raised and the agency admits on appeal that appellant timely sought counseling in December 1994 and January 11, 1995.	Teresa E. Porter v. Department of the Treasury 01976234 April 2, 1999 Teresa E. Porter, ) Appellant, ) ) Appeal No. 01976234 v. ) Agency No. 96-1052 ) Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) Agency. ) ) DECISION On August 6, 1997, appellant filed a timely appeal with this Commission from a July 15, 1997 final agency decision, dismissing one allegation of her complaint for failure to contact an EEO Counselor in a timely manner. The allegation dismissed from appellant's November 17, 1995 complaint was whether appellant was discriminated against on the bases of race and in retaliation when she was not selected for a position in December 1994 as a special agent. In dismissing the allegation for untimely EEO contact, the agency stated that although appellant suspected discrimination in December 1994, she failed to pursue EEO counseling until September 6, 1995, noting that appellant was in contact with an EEO Counselor in December 1994, January 11, 1995, July 9, 1995, and August 18, 1995.<1> The agency also stated that even if appellant contacted the EEO office in a timely manner, she did not pursue her claim with due diligence and the doctrine of laches should apply. The agency further stated that the allegation did not constitute a continuing violation. The agency also denied that appellant was advised by the EEO Counselor that her claim of a discriminatory non-selection could be raised in the future. As an initial matter, the Commission notes that the dismissed allegation was the subject of a prior appeal. In an April 11, 1996 final agency decision (FAD-1), the agency dismissed the allegation on the grounds of untimely EEO contact. In FAD-1, the agency stated that appellant was aware that her non-selection was discriminatory in December 1994 and, therefore, her September 1995 contact was untimely. The agency rejected appellant's explanation that she was advised by an EEO Counselor in January 1995, that she could include the non-selection in a later complaint, stating therein that the EEO Counselor had communicated to the agency that appellant was counseled on an issue other than her non-selection and that appellant made a decision not to pursue her formal complaint. Appellant appealed FAD-1 to the Commission. Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997). In reversing FAD-1 and remanding the allegation to the agency for a supplemental investigation, the Commission noted that the agency failed to provide a statement from the EEO Counselor with whom appellant met in January 1995. The Commission also noted that the record did not include evidence of the EEO Counselor's notes regarding the contact in January 1995. The agency was ordered, among other things, to obtain the affidavit of the EEO Counselor with whom appellant met in January 1995, including the nature of the discussions, issues discussed and any advice provided. The EEO Counselor was also to provide any notes she relied upon to prepare the affidavit. The agency was also ordered to supplement the record with a copy of any official record pertaining to appellant's January 1995 contact. On remand, the agency obtained a sworn declaration from the EEO Counselor. Therein, the Counselor stated that she counseled appellant on "two different EEO-related issues"<2> but that the counseling notes for the case were destroyed.<3> The Counselor also stated that as she recalled, the non-selection was beyond the 45-day time period for timely contact.<4> The EEO Counselor also stated that appellant discussed the non-selection with her and that the non-selection was not the basis of the complaint, but was raised in the context of demonstrating a series of events that led appellant to feel discriminated against.<5> The Counselor stated also that she could not recall advising appellant that she could use non-selection as the basis of a future complaint. The record also contains a June 27, 1997 affidavit of appellant, wherein she stated that she initiated EEO contact in December 1994, regarding the non-selection and, also, that she met with an EEO Counselor on January 11, 1995. Appellant's affidavit reflects that she was informed by the EEO Counselor on January 11, 1995, that she could include the issue of her non-selection in a future complaint. Appellant stated that, based on the EEO Counselor's statement, she believed that she could raise the non-selection issue later. Appellant denied that the EEO Counselor advised her that her non-selection could only be raised as background information. On appeal, appellant continues to maintain that when she met with the EEO Counselor on January 11, 1995, she was advised that she could pursue the non-selection issue later. Appellant also contends that the EEO's Counselor's declaration does not refute her assertion of a January 1995 contact and that the EEO Counselor admitted that non-selection was raised. Appellant further contends that while the EEO Counselor stated in her declaration that she did not recall telling appellant that she could use the non-selection as the basis of a future complaint, the EEO Counselor did not deny that the discussion on non-selection did not take place. In response to the appeal, the agency contends that appellant failed to file a formal complaint in a timely manner, stating that appellant "timely sought EEO counseling in December 1994 and again in January 1995" but failed to file a formal complaint.<6> The agency also asserts that the doctrine of laches should apply because appellant failed to pursue her claim with due diligence by failing to file her formal complaint. The agency denied that appellant was misled by the EEO Counselor. The agency also asserts that it was prejudiced by the destruction of the Counselor's Report, including the Notice of Final Interview with the EEO Counselor for appellant's December 1994 and January 1995 contacts. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person initiate contact with a 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 Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period is not triggered until a complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent. Although careful compliance with the time limits generally is required of parties alleging discrimination, Commission regulations further provide that the 45-day period may be extended where the individual shows that he or she was not notified of the time limit and was not otherwise aware of it, that he or she did not know and reasonably should not have been aware that the alleged discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting an EEO Counselor within the time limit, or for other reasons deemed sufficient by the agency or the Commission. See 29 C.F.R. §1614.105(a)(2). In addition, EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find, based on appellant's affidavit, that appellant first contacted an EEO Counselor in December 1994 and on January 11, 1995, regarding her December 1994 non-selection. In addition, the EEO Counselor herself admits in her declaration that the issue of the non-selection was raised and the agency admits on appeal that appellant timely sought counseling in December 1994 and January 11, 1995. Accordingly, appellant's contact was within the 45 days required for timely Counselor contact. However, what the agency is in effect asserting is that although appellant made timely contact, she did not evidence an intent to pursue the EEO process until September 6, 1995, which was beyond the requisite 45-day limitations period. The Commission has held that a complainant satisfies the criterion of Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996) Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989) Dumaguindin v. Department of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). We find that appellant intended to pursue the non-selection issue in January 1995. However, she did not do so until September 1995, approximately six months later, because she relied on the EEO Counselor's representation in January 1995, that she could pursue the allegation in the future. The Commission has held that agency actions that mislead an individual concerning his or her EEO rights will toll the limitations period. See Herrera v. U.S. Postal Service, EEOC Request No. 05891351 (September 28, 1989) (the Commission found that it would allow the "tolling of time requirements when an agency lulls a complainant into taking no action or actively misleads or prevents a complainant from asserting his rights"); Ong v. Department of the Army, EEOC Request No. 05880290 (August 8, 1988). Although the agency denies that appellant was misled by the EEO Counselor, we find appellant's affidavit more persuasive than the declaration of the EEO Counselor which is tenuous and appears to be purposefully vague. Furthermore, in her declaration, the EEO Counselor did not deny that she informed appellant that she could pursue the allegation later. The EEO Counselor stated only that she could not recall if she had done so. The Commission has held that, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The agency has failed to do so. Consistent with our discussion herein, the final agency decision dismissing appellant's non-selection allegation for untimely EEO contact is REVERSED and the allegation is REMANDED to the agency for further processing. ORDER The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegation within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request. A copy of the agency's letter of acknowledgement to appellant 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 (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: April 2, 1999 DATE Ronnie Blumenthal, Director 1The agency did not provide any EEO records regarding the alleged December 1994, July 9, 1995, and August 18, 1995 contacts. 2The EEO Counselor did not identify the two issues. 3The EEO Counselor did not provide any explanation why or when her "notes" were destroyed. 4The EEO Counselor did not elaborate further on this conclusion. 5The EEO Counselor does not indicate specifically when the non-selection was discussed but as noted hereinbefore, the agency was specifically ordered by the Commission in its prior decision to obtain an affidavit from the Counselor with whom appellant met in January 1995. 6The agency asserts for the first time on appeal that appellant's formal complaint was untimely filed, stating that appellant should have filed a formal complaint in December 1994 and January 1995 after seeking EEO counseling. Since this argument was not raised or addressed by the agency in its final decision when it dismissed the allegation, it is improper for the agency to raise this argument on appeal. Moreover, there is no evidence in the record that appellant was issued a notice of right to file a formal complaint by the agency in either December 1994 or January 1995.	[ "Porter v. Department of the Treasury, EEOC Appeal No. 01964369 (January 16, 1997)", "Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988)", "Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)", ...	[ -0.06364268809556961, 0.11267377436161041, 0.005361763760447502, -0.03472554683685303, 0.08499213308095932, 0.032961655408144, 0.03622238337993622, 0.10444991290569305, -0.022177407518029213, 0.033436067402362823, 0.048529673367738724, -0.039564646780490875, -0.03247985616326332, -0.023064...
58	https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2021000475.pdf	2021000475.pdf	PDF	application/pdf	11,568	Narcisa D .,1 Complainant, v. Jefferey A. Rosen, Acting Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.	October 14, 2020	Appeal Number: 2021000475 Background: At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Special Security Officer at the Agency’s U.S. Attorney's Office for the Southern District of New York in New York, New York. On July 2, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against based on her race (African -American), sex (female), religion (PROS ), and age (75) when, on March 1 7, 2020, her employment was terminated b y her staffing firm. When Complainant initiated EEO counseling, she completed a pre -complaint form and wrote that the alleged discrimination occurred in March 2020, and that her “Initial Contact Date” and “Date of First EEO contact on this Issue” was June 11, 2020. She reiterated this contact date in her EEO complaint. After Complainant filed her EEO complaint, the Agency’s EEO function sent her an inquiry t hat recounted the 45 -calendar day time limit to initiate EEO counseling after of the alleged discriminatory action, and asked her to explain why she missed this deadline. Complainant responded that on April 23, 2020, the Court Security Officers Union notified her that it would not handle her grievance. This referred to a grievance the union filed on her behalf against the staffing firm on April 12, 2020, for terminating her . By letter dated April 23, 2020, the union informed Complainant that the staffing firm denied the grievance because she was terminated for failing to satisfy weapons qualifications . It explained that because the staffing firm provided proof that she failed to meet the government standards for weapons, she had no avenue in the grievance process because the Collective Bargaining Agreement excludes from the grievance process termination for failure to satisfy government qualifications . The union also advised Complainant that it would not pay for her to hire an attorney to represent her in the EEO process on her removal because she chances of success there were unlikely . In response to the above inquiry about delay , Complainant further explained that after April 23, 2020, she repeatedly reached out to the staffing firm’s human resources department to request another firearm requalification exam , and when she finally got through she was advised there was not solution to her request. She wrote that was when she contacted the Agency EEO office. The Agency dismissed the complaint because Complainant initiated EEO counseling on June 11, 2020, beyond the 45 calendar day time limit and failure to state a claim because she was not an employee of the Agency under common law. The instant appeal followed. On appeal, Complainant argues for the first time that she timely initiated EEO counseling on April 9, 2020. In support, she submits an email sent to her by the Agency’s EEO office on April 9, 2020. In reference to a prior EEO complaint Complainant filed on March 16, 2016 , 2 which was pending before an EEOC hearings unit, the EEO office advised that because of Covid-19 until further notice EEO staff did not have access to the U.S. Mail, FedEx, any other courier service, or a fax machine, and advised all correspondence should be done via email. Complainant also argues that she was not aware of the 45 -day time limit to initiate EEO counseling. In reply to Complainant’s appeal, the Agency argues that Complainant repeatedly indicated below that she initiated EEO counseling on June 11, 2020, explained why she was late, asserts for the first time on appeal that s he timely initiated EEO counseling on April 9, 2020, and the documentation she submits to support this relates to a prior EEO complaint. 2 We take administrative notice that Complainant filed a second related EEO complaint on Jul y 6, 2016. See Liz M. v. Justice, EEOC Appeal Nos. 0120162835 and 0120170199 (Feb. 2, 2017). The Agency argues that Complainant was aware of the 45 -day calendar day time limit as evidenced by her previously bring ing an EEO complaint in the administrative EEO complaint process. Legal Analysis: the Commission shall extend the 45- day time limit when the individual shows that she was not notified of it. 29 C.F.R. § 1614.105(a)(2). We agree with the Agency’s finding that regarding the complaint before us, Complainant initiated EEO counseling on June 11, 2020. She conceded this repeatedly below, and her appellate contention to the contrary is unsupported by the documentation she provides. To the extent Complainant still argues this, we disagree with her that the 45 day time limit should have been tolled while she tried to resolve things with her staffing firm. As found by the Agency, Complainant is presumed to be aware of the 45 calendar day time limit to initiate EEO counseling because of her prior participation as a complainant in the EEO administrative complaint process. Fuller v. Homeland Security , EEOC Appeal No. 0120100171 (Apr. 16, 2010) (the complainant, as a previous participant in the EEO process, is presumed to be cognizant of the time limitations for making counselor contact ).	Narcisa D .,1 Complainant, v. Jefferey A. Rosen, Acting Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2021000475 Agency No. USA-2020-01528 DECISION On October 14, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 30, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Special Security Officer at the Agency’s U.S. Attorney's Office for the Southern District of New York in New York, New York. On July 2, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against based on her race (African -American), sex (female), religion (PROS ), and age (75) when, on March 1 7, 2020, her employment was terminated b y her staffing firm. When Complainant initiated EEO counseling, she completed a pre -complaint form and wrote that the alleged discrimination occurred in March 2020, and that her “Initial Contact Date” and “Date of First EEO contact on this Issue” was June 11, 2020. She reiterated this contact date in her EEO complaint. After Complainant filed her EEO complaint, the Agency’s EEO function sent her an inquiry t hat recounted the 45 -calendar day time limit to initiate EEO counseling after of the alleged discriminatory action, and asked her to explain why she missed this deadline. Complainant responded that on April 23, 2020, the Court Security Officers Union notified her that it would not handle her grievance. This referred to a grievance the union filed on her behalf against the staffing firm on April 12, 2020, for terminating her . By letter dated April 23, 2020, the union informed Complainant that the staffing firm denied the grievance because she was terminated for failing to satisfy weapons qualifications . It explained that because the staffing firm provided proof that she failed to meet the government standards for weapons, she had no avenue in the grievance process because the Collective Bargaining Agreement excludes from the grievance process termination for failure to satisfy government qualifications . The union also advised Complainant that it would not pay for her to hire an attorney to represent her in the EEO process on her removal because she chances of success there were unlikely . In response to the above inquiry about delay , Complainant further explained that after April 23, 2020, she repeatedly reached out to the staffing firm’s human resources department to request another firearm requalification exam , and when she finally got through she was advised there was not solution to her request. She wrote that was when she contacted the Agency EEO office. The Agency dismissed the complaint because Complainant initiated EEO counseling on June 11, 2020, beyond the 45 calendar day time limit and failure to state a claim because she was not an employee of the Agency under common law. The instant appeal followed. On appeal, Complainant argues for the first time that she timely initiated EEO counseling on April 9, 2020. In support, she submits an email sent to her by the Agency’s EEO office on April 9, 2020. In reference to a prior EEO complaint Complainant filed on March 16, 2016 , 2 which was pending before an EEOC hearings unit, the EEO office advised that because of Covid-19 until further notice EEO staff did not have access to the U.S. Mail, FedEx, any other courier service, or a fax machine, and advised all correspondence should be done via email. Complainant also argues that she was not aware of the 45 -day time limit to initiate EEO counseling. In reply to Complainant’s appeal, the Agency argues that Complainant repeatedly indicated below that she initiated EEO counseling on June 11, 2020, explained why she was late, asserts for the first time on appeal that s he timely initiated EEO counseling on April 9, 2020, and the documentation she submits to support this relates to a prior EEO complaint. 2 We take administrative notice that Complainant filed a second related EEO complaint on Jul y 6, 2016. See Liz M. v. Justice, EEOC Appeal Nos. 0120162835 and 0120170199 (Feb. 2, 2017). The Agency argues that Complainant was aware of the 45 -day calendar day time limit as evidenced by her previously bring ing an EEO complaint in the administrative EEO complaint process. ANALYSIS AND FINDINGS An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend the 45- day time limit when the individual shows that she was not notified of it. 29 C.F.R. § 1614.105(a)(2). We agree with the Agency’s finding that regarding the complaint before us, Complainant initiated EEO counseling on June 11, 2020. She conceded this repeatedly below, and her appellate contention to the contrary is unsupported by the documentation she provides. To the extent Complainant still argues this, we disagree with her that the 45 day time limit should have been tolled while she tried to resolve things with her staffing firm. As found by the Agency, Complainant is presumed to be aware of the 45 calendar day time limit to initiate EEO counseling because of her prior participation as a complainant in the EEO administrative complaint process. Fuller v. Homeland Security , EEOC Appeal No. 0120100171 (Apr. 16, 2010) (the complainant, as a previous participant in the EEO process, is presumed to be cognizant of the time limitations for making counselor contact ). Accordingly, the FAD is AFFIRMED because Complainant failed to timely initiate EEO counseling. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 3 On appeal, the Agency argues that Complainant’s complaint states a claim because she is not an employee of the Agency under common law. Because we have affirmed the dismissal of Complainant’s complaint for failure to timely initiate EEO counseling, we need not address whether her complaint fails to state a claim. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty (20) calendar days from receipt of another party’s request for reconsideration within 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 M D-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing per iod. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the part y’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 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 January 25, 2021 Date	[ "Fuller v. Homeland Security , EEOC Appeal No. 0120100171 (Apr. 16, 2010)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 621" ]	[ -0.09058044850826263, 0.03555358946323395, -0.0048718578182160854, 0.04972110688686371, 0.032161206007003784, 0.04766217619180679, -0.006717062089592218, -0.023907341063022614, -0.008581909351050854, 0.014781237579882145, 0.02932737022638321, 0.012805205769836903, -0.022823717445135117, 0....
59	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A22032_r.txt	01A22032_r.txt	TXT	text/plain	10,369	Joseph L. Czarniecki v. Department of Commerce 01A22032 October 3, 2002 . Joseph L. Czarniecki, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.	October 3, 2002	Appeal Number: 01A22032 Case Facts: On October 19, 2001, complainant filed a formal EEO complaint wherein he claimed that he had been discriminated against on the bases of his age (58), and in reprisal for his previous EEO activity under the Age Discrimination in Employment Act when: 1. He was issued a Letter of Counseling, dated November 3, 2000, regarding false statements made during a survey feedback action meeting, as a means to disadvantage him for consideration in a known, upcoming, internal GS-14 position. 2. He was not selected for the position of Meteorologist, GS-1340-14, advertised under Vacancy Announcement Number H/NWS/01-056.KLB. 3. After his nonselection, he was issued a revised Letter of Counseling, dated April 2, 2001, to the original letter dated November 3, 2000. In its decision dated January 23, 2002, the agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2), on the grounds that complainant failed to initiate contact with an EEO Counselor in a timely manner. The agency determined that complainant's contact of an EEO Counselor on June 27, 2001, was after the expiration of the 45-day limitation period for initiating contact with an EEO Counselor. The agency stated that complainant received the Letter of Counseling on November 3, 2000, and he became aware on February 11, 2001, that he had not been selected for the Meteorologist position. The agency determined that complainant received the revised Letter of Counseling on April 2, 2001. The agency determined that complainant's contact of an EEO Counselor on June 27, 2001, was after the expiration of the 45-day limitation period for initiating contact with an EEO Counselor. On appeal, complainant contends with regard to claim (1) that upon receipt of the Letter of Counseling, he immediately contacted two agency officials, and that both of these officials indicated that the Letter of Counseling would be withdrawn. Complainant states that he did not receive further information regarding the Letter of Counseling until April 13, 2002, when he was told that the issue he raised had been addressed, and that he should be receiving a letter about the issue soon. With respect to claim (2), complainant states that the vacancy announcement for the Meteorologist position closed on February 11, 2001, but he did not learn until April 5, 2001, that he had not been selected for the Meteorologist position. Complainant maintains with regard to claim (3) that he received the revised Letter of Counseling dated April 2, 2001, on April 22, 2001, during his mid-year appraisal meeting. Complainant contends that he contacted an EEO Specialist by telephone on May 18, 2001, but an EEO Counselor was not available to meet with him until June 27, 2001. According to complainant, his EEO contact on May 18, 2001, establishes that he initiated contact with an EEO Counselor within the 45-day limitation period with respect to claims (2) and (3). Complainant further argues as to claim (2) that he lacked a reasonable suspicion of discrimination until April 22, 2001. Complainant claims that it was only when he received the revised Letter of Counseling that he had a suspicion that it had influenced his nonselection. In response, the agency notes that complainant stated that he was waiting for months for confirmation that the Letter of Counseling had been withdrawn. The agency asserts that complainant failed to raise the Letter of Counseling during informal EEO counseling and his EEO contact was 236 days after he received the original Letter of Counseling. According to the agency, the Letter of Counseling had a degree of permanence that should have triggered complainant's awareness and duty to assert his EEO rights in November 2000. The agency states that although complainant argues that he contacted an EEO Counselor on May 18, 2001, the EEO Counselor's report indicates that complainant's initial EEO contact was on June 27, 2001. The agency asserts with regard to complainant's nonselection that complainant became aware on February 11, 2001, that he had not been selected for the Meteorologist position. The agency argues that the revised Letter of Counseling was not raised during informal EEO counseling and that it was received by complainant on April 2, 2001. Legal Analysis: Upon review of the record, we find that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant contends that he initiated contact with an EEO Counselor on May 18, 2001. However, the EEO Counselor's report indicates that complainant's initial EEO contact occurred on June 27, 2001. The EEO Counselor's report was completed by the same EEO Counselor that complainant claims to have contacted on May 18, 2001. We find that complainant has not submitted sufficient evidence to establish that his initial EEO contact occurred on May 18, 2001. Complainant received the original Letter of Counseling on November 3, 2000, yet complainant did not contact an EEO Counselor until June 27, 2001. Complainant claims that agency officials assured him that the Letter of Counseling would be withdrawn. However, complainant was not entitled to toll the 45-day limitation period for contacting an EEO Counselor while he waited for confirmation that the agency had withdrawn the Letter of Counseling. We find that complainant has not provided sufficient justification for an extension of the 45-day limitation period. With respect to claim (2), we find that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant claims that the date referenced by the agency, February 11, 2001, was not the date that he learned that he had not been selected for the Meteorologist position, but rather the date that the relevant vacancy announcement closed. However, assuming arguendo, that complainant did not learn of his nonselection until April 5, 2001, we find that his EEO contact of June 27, 2001, was still after the expiration of the 45-day limitation period. As for claim (3), we find that although the agency has not refuted complainant's contention that he received the revised Letter of Counseling during his mid-year appraisal meeting on April 22, 2001, complainant's EEO contact on June 27, 2001, was nevertheless after the expiration of the 45-day limitation period. Final Decision: Accordingly, the agency's decision to dismiss the complaint was proper and is AFFIRMED.	Joseph L. Czarniecki v. Department of Commerce 01A22032 October 3, 2002 . Joseph L. Czarniecki, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency. Appeal No. 01A22032 Agency No. 01-54-00338 DECISION On October 19, 2001, complainant filed a formal EEO complaint wherein he claimed that he had been discriminated against on the bases of his age (58), and in reprisal for his previous EEO activity under the Age Discrimination in Employment Act when: 1. He was issued a Letter of Counseling, dated November 3, 2000, regarding false statements made during a survey feedback action meeting, as a means to disadvantage him for consideration in a known, upcoming, internal GS-14 position. 2. He was not selected for the position of Meteorologist, GS-1340-14, advertised under Vacancy Announcement Number H/NWS/01-056.KLB. 3. After his nonselection, he was issued a revised Letter of Counseling, dated April 2, 2001, to the original letter dated November 3, 2000. In its decision dated January 23, 2002, the agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2), on the grounds that complainant failed to initiate contact with an EEO Counselor in a timely manner. The agency determined that complainant's contact of an EEO Counselor on June 27, 2001, was after the expiration of the 45-day limitation period for initiating contact with an EEO Counselor. The agency stated that complainant received the Letter of Counseling on November 3, 2000, and he became aware on February 11, 2001, that he had not been selected for the Meteorologist position. The agency determined that complainant received the revised Letter of Counseling on April 2, 2001. The agency determined that complainant's contact of an EEO Counselor on June 27, 2001, was after the expiration of the 45-day limitation period for initiating contact with an EEO Counselor. On appeal, complainant contends with regard to claim (1) that upon receipt of the Letter of Counseling, he immediately contacted two agency officials, and that both of these officials indicated that the Letter of Counseling would be withdrawn. Complainant states that he did not receive further information regarding the Letter of Counseling until April 13, 2002, when he was told that the issue he raised had been addressed, and that he should be receiving a letter about the issue soon. With respect to claim (2), complainant states that the vacancy announcement for the Meteorologist position closed on February 11, 2001, but he did not learn until April 5, 2001, that he had not been selected for the Meteorologist position. Complainant maintains with regard to claim (3) that he received the revised Letter of Counseling dated April 2, 2001, on April 22, 2001, during his mid-year appraisal meeting. Complainant contends that he contacted an EEO Specialist by telephone on May 18, 2001, but an EEO Counselor was not available to meet with him until June 27, 2001. According to complainant, his EEO contact on May 18, 2001, establishes that he initiated contact with an EEO Counselor within the 45-day limitation period with respect to claims (2) and (3). Complainant further argues as to claim (2) that he lacked a reasonable suspicion of discrimination until April 22, 2001. Complainant claims that it was only when he received the revised Letter of Counseling that he had a suspicion that it had influenced his nonselection. In response, the agency notes that complainant stated that he was waiting for months for confirmation that the Letter of Counseling had been withdrawn. The agency asserts that complainant failed to raise the Letter of Counseling during informal EEO counseling and his EEO contact was 236 days after he received the original Letter of Counseling. According to the agency, the Letter of Counseling had a degree of permanence that should have triggered complainant's awareness and duty to assert his EEO rights in November 2000. The agency states that although complainant argues that he contacted an EEO Counselor on May 18, 2001, the EEO Counselor's report indicates that complainant's initial EEO contact was on June 27, 2001. The agency asserts with regard to complainant's nonselection that complainant became aware on February 11, 2001, that he had not been selected for the Meteorologist position. The agency argues that the revised Letter of Counseling was not raised during informal EEO counseling and that it was received by complainant on April 2, 2001. Upon review of the record, we find that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant contends that he initiated contact with an EEO Counselor on May 18, 2001. However, the EEO Counselor's report indicates that complainant's initial EEO contact occurred on June 27, 2001. The EEO Counselor's report was completed by the same EEO Counselor that complainant claims to have contacted on May 18, 2001. We find that complainant has not submitted sufficient evidence to establish that his initial EEO contact occurred on May 18, 2001. Complainant received the original Letter of Counseling on November 3, 2000, yet complainant did not contact an EEO Counselor until June 27, 2001. Complainant claims that agency officials assured him that the Letter of Counseling would be withdrawn. However, complainant was not entitled to toll the 45-day limitation period for contacting an EEO Counselor while he waited for confirmation that the agency had withdrawn the Letter of Counseling. We find that complainant has not provided sufficient justification for an extension of the 45-day limitation period. With respect to claim (2), we find that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant claims that the date referenced by the agency, February 11, 2001, was not the date that he learned that he had not been selected for the Meteorologist position, but rather the date that the relevant vacancy announcement closed. However, assuming arguendo, that complainant did not learn of his nonselection until April 5, 2001, we find that his EEO contact of June 27, 2001, was still after the expiration of the 45-day limitation period. As for claim (3), we find that although the agency has not refuted complainant's contention that he received the revised Letter of Counseling during his mid-year appraisal meeting on April 22, 2001, complainant's EEO contact on June 27, 2001, was nevertheless after the expiration of the 45-day limitation period. Accordingly, the agency's decision to dismiss the complaint was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 October 3, 2002 __________________ Date	[ "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.08936652541160583, 0.09565580636262894, 0.008096877485513687, 0.04548681154847145, 0.010076930746436119, 0.06549900770187378, 0.025620685890316963, 0.08539105951786041, -0.09352608025074005, 0.0034108494874089956, 0.03994980454444885, 0.00039199437014758587, -0.013445955701172352, -0.02...
60	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103279.txt	0120103279.txt	TXT	text/plain	12,603	Andrea J. LeMahieu, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.	July 7, 2010	Appeal Number: 0120103279 Background: At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist (Developmental), at the Agency's Academy in Oklahoma City, Oklahoma. After being terminated from her position on December 2, 2009, Complainant contacted the Agency on December 30, 2009, to initiate an EEO complaint. Complainant subsequently spoke with an EEO Counselor on January 19, 2010, but felt that the Counselor was biased and argumentative. Complainant thereafter told the EEO Counselor that she wished to "cancel" her EEO complaint. Complainant felt the Counselor was not neutral upon learning that the Counselor worked for the Agency. On April 23, 2010, Complainant again contacted the Agency to pursue her EEO complaint. Complainant was then assigned to a new EEO Counselor whom she first spoke with on May 12, 2010. On June 7, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of sex (female) when, from September 2009 through December 2, 2009: 1. her lead instructor used profanity and offensive language in class on a regular basis; 2. her lead instructor made derogatory comments to other instructors regarding her educational background; 3. she witnessed her instructor sexually harassing other students; 4. her instructor granted favoritism to the students he sexually harassed, and thereby deprived her of a fair chance of succeeding; 5. as a result of fear and hostility she was not able to learn, and therefore unable to adapt to the work environment; and 6. she was terminated from her temporary appointment of Air Traffic Control Specialist, FG-2152601, effective December 2,2009. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency noted that Complainant's final day of employment was on December, 2, 2009, but Complainant did not contact an EEO counselor until April 27, 2010, beyond the 45-day time limit requirement. CONTENTIONS ON APPEAL On appeal, Complainant contends that she spoke with an Agency official on December 30, 2009, to set up an appointment to initiate her EEO complaint. Complainant contends that she again spoke with this official on December 31, 2009, who stated that "they had three days to find me an EEO counselor." Complainant contends that there was a major delay in assigning her an EEO counselor, but that a counselor called her on January 19, 2010. Complainant contends that the Counselor was very argumentative, did not listen, and defended the Agency. Complainant felt that the Counselor assigned to her was not a neutral party and was very biased against her claims. Complainant contends that once she became aware that the Counselor worked for the Agency, she asked to cancel her complaint. Complainant contends that she canceled her complaint because she felt that she would be unable to obtain a fair and impartial review in the Agency's EEO process. Complainant contends that on April 23, 2010, she again contacted the same Agency official to again pursue her complaint. Complainant contends that she was assigned to a new EEO Counselor whom she first spoke with on May 12, 2010. Complainant believes that her EEO contact was in fact timely because she first spoke with the Agency on December 30, 2009. Legal Analysis: 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. We note that, on appeal, Complainant contends that she contacted the Agency on December 30, 2009, and spoke with an EEO Counselor on January 19, 2010. Complainant felt that the Counselor assigned to her was not a neutral party and very biased against her claims. Complainant contends that once she became aware that the Counselor worked for the Agency, she asked to cancel her complaint. Complainant contends that she told the EEO Counselor to cancel complaint, believing that that she would be unable to obtain a fair and impartial review. Complainant contends that on April 23, 2010, she again contacted the Agency to pursue her complaint and was assigned to another EEO counselor. The EEOC Management Directive 110, Section 2-1, at n.1, states that "the Commission consistently has held that a complainant may satisfy me criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process . . . and by exhibiting an intent to begin the EEO process." See Nyarko v. Dep't of the Navy, EEOC Appeal No. 0120113654 (Dec. 5, 2012) (citing Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 8, 1996)). Here, Complainant does not dispute that she notified the EEO Counselor that she wished to withdrawal her claims. We find that Complainant's notice to the EEO Counselor withdrawing these claims serves as evidence that Complainant did not intend to pursue these matters in the EEO process. As such, we find that Complainant's claims were withdrawn during EEO counseling, and must be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). See Stylc v. National Security Agency, EEOC Appeal No. 0120063829 (Dec. 11, 2006) (finding that complainant's notice to the EEO Counselor withdrawing her claims served as evidence that she did not intend to pursue her claims in the EEO process). Therefore, we that Complainant did not contact a counselor with intent to pursue her complaint until April 23, 2010, which is more than 45-days after her December 2, 2009, termination. Furthermore, the Commission has consistently held that first contact with an EEO Counselor does not count as initial EEO contact for timeliness where complainant seeks counseling, withdraws, and then re-initiates contact on the same matter months later. See Barrios v. Dep't of the Navy, EEOC Appeal No. 01A34748 (Dec. 1, 2003) (citing Juarez v. Dep't of the Air Force, EEOC Appeal No. 01976151 (June 3, 1998)). Also, although Complainant asserts that the EEO Counselor with whom she on January 19, 2010, was biased and argumentative, she does not identify how the counseling she received materially affected the processing of her complaint. Complainant does not show how the EEO Counselor's actions hampered her ability to pursue her complaint. Therefore, based on the evidence available, we cannot conclude that the EEO counseling provided to Complainant materially affected the processing of her complaint. See Chostner v. Dep't of the Navy, EEOC Appeal No. 0120071440 (Apr. 25, 2007) (complainant failed to show how the counseling she received materially affected the processing of her complaint). Final Decision: Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.	Andrea J. LeMahieu, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120103279 Agency No. 2010-23308-FAA-05 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated July 7, 2010, 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 reasons that follow, the Agency's final decision is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist (Developmental), at the Agency's Academy in Oklahoma City, Oklahoma. After being terminated from her position on December 2, 2009, Complainant contacted the Agency on December 30, 2009, to initiate an EEO complaint. Complainant subsequently spoke with an EEO Counselor on January 19, 2010, but felt that the Counselor was biased and argumentative. Complainant thereafter told the EEO Counselor that she wished to "cancel" her EEO complaint. Complainant felt the Counselor was not neutral upon learning that the Counselor worked for the Agency. On April 23, 2010, Complainant again contacted the Agency to pursue her EEO complaint. Complainant was then assigned to a new EEO Counselor whom she first spoke with on May 12, 2010. On June 7, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of sex (female) when, from September 2009 through December 2, 2009: 1. her lead instructor used profanity and offensive language in class on a regular basis; 2. her lead instructor made derogatory comments to other instructors regarding her educational background; 3. she witnessed her instructor sexually harassing other students; 4. her instructor granted favoritism to the students he sexually harassed, and thereby deprived her of a fair chance of succeeding; 5. as a result of fear and hostility she was not able to learn, and therefore unable to adapt to the work environment; and 6. she was terminated from her temporary appointment of Air Traffic Control Specialist, FG-2152601, effective December 2,2009. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency noted that Complainant's final day of employment was on December, 2, 2009, but Complainant did not contact an EEO counselor until April 27, 2010, beyond the 45-day time limit requirement. CONTENTIONS ON APPEAL On appeal, Complainant contends that she spoke with an Agency official on December 30, 2009, to set up an appointment to initiate her EEO complaint. Complainant contends that she again spoke with this official on December 31, 2009, who stated that "they had three days to find me an EEO counselor." Complainant contends that there was a major delay in assigning her an EEO counselor, but that a counselor called her on January 19, 2010. Complainant contends that the Counselor was very argumentative, did not listen, and defended the Agency. Complainant felt that the Counselor assigned to her was not a neutral party and was very biased against her claims. Complainant contends that once she became aware that the Counselor worked for the Agency, she asked to cancel her complaint. Complainant contends that she canceled her complaint because she felt that she would be unable to obtain a fair and impartial review in the Agency's EEO process. Complainant contends that on April 23, 2010, she again contacted the same Agency official to again pursue her complaint. Complainant contends that she was assigned to a new EEO Counselor whom she first spoke with on May 12, 2010. Complainant believes that her EEO contact was in fact timely because she first spoke with the Agency on December 30, 2009. ANALYSIS AND FINDINGS Dismissal for 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. We note that, on appeal, Complainant contends that she contacted the Agency on December 30, 2009, and spoke with an EEO Counselor on January 19, 2010. Complainant felt that the Counselor assigned to her was not a neutral party and very biased against her claims. Complainant contends that once she became aware that the Counselor worked for the Agency, she asked to cancel her complaint. Complainant contends that she told the EEO Counselor to cancel complaint, believing that that she would be unable to obtain a fair and impartial review. Complainant contends that on April 23, 2010, she again contacted the Agency to pursue her complaint and was assigned to another EEO counselor. The EEOC Management Directive 110, Section 2-1, at n.1, states that "the Commission consistently has held that a complainant may satisfy me criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process . . . and by exhibiting an intent to begin the EEO process." See Nyarko v. Dep't of the Navy, EEOC Appeal No. 0120113654 (Dec. 5, 2012) (citing Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 8, 1996)). Here, Complainant does not dispute that she notified the EEO Counselor that she wished to withdrawal her claims. We find that Complainant's notice to the EEO Counselor withdrawing these claims serves as evidence that Complainant did not intend to pursue these matters in the EEO process. As such, we find that Complainant's claims were withdrawn during EEO counseling, and must be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). See Stylc v. National Security Agency, EEOC Appeal No. 0120063829 (Dec. 11, 2006) (finding that complainant's notice to the EEO Counselor withdrawing her claims served as evidence that she did not intend to pursue her claims in the EEO process). Therefore, we that Complainant did not contact a counselor with intent to pursue her complaint until April 23, 2010, which is more than 45-days after her December 2, 2009, termination. Furthermore, the Commission has consistently held that first contact with an EEO Counselor does not count as initial EEO contact for timeliness where complainant seeks counseling, withdraws, and then re-initiates contact on the same matter months later. See Barrios v. Dep't of the Navy, EEOC Appeal No. 01A34748 (Dec. 1, 2003) (citing Juarez v. Dep't of the Air Force, EEOC Appeal No. 01976151 (June 3, 1998)). Also, although Complainant asserts that the EEO Counselor with whom she on January 19, 2010, was biased and argumentative, she does not identify how the counseling she received materially affected the processing of her complaint. Complainant does not show how the EEO Counselor's actions hampered her ability to pursue her complaint. Therefore, based on the evidence available, we cannot conclude that the EEO counseling provided to Complainant materially affected the processing of her complaint. See Chostner v. Dep't of the Navy, EEOC Appeal No. 0120071440 (Apr. 25, 2007) (complainant failed to show how the counseling she received materially affected the processing of her complaint). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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 April 19, 2013 Date	[ "Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)", "Nyarko v. Dep't of the Navy, EEOC Appeal No. 0120113654 (Dec. 5, 2012)", "Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 8, 1996)", "Stylc v. National Security Agency, EEOC Appeal No. 0120063829 (Dec. 11, 2006)", "Juarez...	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61	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150791.r.txt	0120150791.r.txt	TXT	text/plain	12,274		December 15, 2014	Appeal Number: 0120150791 Background: During the period at issue, Complainant worked as an Agricultural Specialist in Miami, Florida. On October 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability, and age (55). In its final decision, dated December 15, 2014, the Agency determined that Complainant's complaint was comprised of the following claim: On June 13, 2014, [Complainant] was issued a letter of reprimand for failure to follow instructions and unprofessional conduct. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until August 8, 2014, which was 11 days beyond the July 28, 2014 deadline. The instant appeal followed. On appeal, Complainant includes a declaration under penalty of perjury. Therein, he asserts that he contacted an EEO Counselor (EEO1) on July 3, 2014, using his personal cell phone and left a voicemail message. Complainant further asserts that he contacted EEO1 twice in mid-July using a work phone; however, the EEO Counselor did not answer and he again left messages both times. Complainant asserts he finally reached an EEO Counselor on August 8, 2014. Legal Analysis: 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. In the instant matter, we find that Complainant initiated EEO contact on July 3, 2014 when he contacted EEO1, an Agency official logically connected to the EEO process with the intent to pursue the EEO process. Complainant in a declaration under penalty of perjury asserts that he contacted EEO1 on July 3, 2014, using his personal cell phone and left a message, but did not receive a call back from EEO1. While EEO1 states in an email that he has no recollection or record of receiving a call on July 3, 2014 from Complainant, we are not persuaded by EEO1's assertion. The record contains a copy of Complainant's cell phone bill reflecting that he placed a two minute call to EEO1's phone number on July 3, 2014. The Agency does not provide an explanation with respect to Complainant's phone call on July 3, 2014. To the extent the Agency asserts, in response to Complainant's appeal, that Complainant should have used one of the two methods for initiating EEO contact set forth on Agency posters: 1) using a designated email address for the Agency EEO Office or 2) contacting a designated toll free number (rather than contacting EEO1), we are not persuaded by this assertion because the record reflects that EEO1 is an Agency official logically connected to the EEO process. The record contains a copy of the letter of reprimand at issue. The letter provides both a toll free number and EEO1's number for Complainant to contact regarding EEO matters. In addition, in a declaration under penalty of perjury from EEO1 dated January 13, 2012, EEO1 asserts that he is Diversity and Civil Rights Officer and his duties include, in pertinent part, providing EEO Counseling to employees who believe they have been subjected to discrimination. On August 8, 2014, Complainant sent an email to the EEO Office entitled "EEO Follow Up." Therein, Complainant stated that he was following up an informal complaint and that he had contacted EEO1 by phone and had yet to receive a return call. Based on the foregoing, we find that Complainant initiated EEO contact on July 3, 2014, when he attempted to contact EEO1 by phone, which is within the applicable time period.	Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120150791 Agency No. HS-CBP-018262014 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 15, 2014, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Agricultural Specialist in Miami, Florida. On October 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability, and age (55). In its final decision, dated December 15, 2014, the Agency determined that Complainant's complaint was comprised of the following claim: On June 13, 2014, [Complainant] was issued a letter of reprimand for failure to follow instructions and unprofessional conduct. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until August 8, 2014, which was 11 days beyond the July 28, 2014 deadline. The instant appeal followed. On appeal, Complainant includes a declaration under penalty of perjury. Therein, he asserts that he contacted an EEO Counselor (EEO1) on July 3, 2014, using his personal cell phone and left a voicemail message. Complainant further asserts that he contacted EEO1 twice in mid-July using a work phone; however, the EEO Counselor did not answer and he again left messages both times. Complainant asserts he finally reached an EEO Counselor on August 8, 2014. ANALYSIS AND FINDINGS We find that the Agency improperly dismissed Complainant's complaint for 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. In the instant matter, we find that Complainant initiated EEO contact on July 3, 2014 when he contacted EEO1, an Agency official logically connected to the EEO process with the intent to pursue the EEO process. Complainant in a declaration under penalty of perjury asserts that he contacted EEO1 on July 3, 2014, using his personal cell phone and left a message, but did not receive a call back from EEO1. While EEO1 states in an email that he has no recollection or record of receiving a call on July 3, 2014 from Complainant, we are not persuaded by EEO1's assertion. The record contains a copy of Complainant's cell phone bill reflecting that he placed a two minute call to EEO1's phone number on July 3, 2014. The Agency does not provide an explanation with respect to Complainant's phone call on July 3, 2014. To the extent the Agency asserts, in response to Complainant's appeal, that Complainant should have used one of the two methods for initiating EEO contact set forth on Agency posters: 1) using a designated email address for the Agency EEO Office or 2) contacting a designated toll free number (rather than contacting EEO1), we are not persuaded by this assertion because the record reflects that EEO1 is an Agency official logically connected to the EEO process. The record contains a copy of the letter of reprimand at issue. The letter provides both a toll free number and EEO1's number for Complainant to contact regarding EEO matters. In addition, in a declaration under penalty of perjury from EEO1 dated January 13, 2012, EEO1 asserts that he is Diversity and Civil Rights Officer and his duties include, in pertinent part, providing EEO Counseling to employees who believe they have been subjected to discrimination. On August 8, 2014, Complainant sent an email to the EEO Office entitled "EEO Follow Up." Therein, Complainant stated that he was following up an informal complaint and that he had contacted EEO1 by phone and had yet to receive a return call. Based on the foregoing, we find that Complainant initiated EEO contact on July 3, 2014, when he attempted to contact EEO1 by phone, which is within the applicable time period. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency 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 (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 May 7, 2015 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. ...	[ -0.05009900778532028, 0.0829656571149826, -0.06506005674600601, 0.0722472071647644, 0.029481207951903343, 0.08293081074953079, 0.016655774787068367, -0.03695109114050865, -0.08393028378486633, 0.019846342504024506, 0.045440673828125, 0.01831395924091339, -0.0009059587027877569, 0.068404518...
62	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a44547.txt	01a44547.txt	TXT	text/plain	14,675	Van C. Pointer, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, (Army and Air Force Exchange Service), Agency.	December 29, 2004	Appeal Number: 01A44547 Legal Analysis: The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996). Complainant's re-initiation of EEO Counselor contact, on May 4, 2001, is beyond the forty-five (45) day limitation period. On appeal, complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the agency properly dismissed claims (a) - (f) on the grounds of untimely EEO Counselor contact. Claims (g), (h), (j), and (k) The record reveals that complainant initiated EEO Counselor contact on May 4, 2001, concerning claims (g), (h), (j), and (k), which is well beyond the forty-five (45) day limitation period with regard to those claims. Complainant failed to present adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation time period beyond the forty-five (45)days. Therefore, we find that the agency properly dismissed claims (g), (h), (j), and (k) for untimely EEO Counselor contact. Claims (l) and (m) The Commission determines that the matters identified in claims (l) and (m) do not address a personal loss or harm regarding a term, condition, or privilege of complainant's employment. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that the agency properly dismissed claims (1) and (m) for failure to state a claim. Final Decision: Accordingly, the agency's final order implementing the AJ's dismissal of the instant complaint is AFFIRMED.	Ke'Van C. Pointer v. Department of the Army 01A44547 December 29, 2004 . Ke'Van C. Pointer, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, (Army and Air Force Exchange Service), Agency. Appeal No. 01A44547 Agency Nos. 02.055 02.083 Hearing No. 100-2003-08159X DECISION Complainant timely initiated an appeal from the agency's final order concerning his two equal employment opportunity (EEO) complaints 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. During the relevant time, complainant was employed as a Custodial Worker and a Custodial Worker Foreman at the agency's Army and Air Force Exchange Service (AAFES), Mannheim Main Store, Heidelberg Exchange, in Mannheim, Germany. On December 1, 1997, complainant contacted an EEO Counselor. On January 20, 1998, a Memorandum of Agreement was signed by complainant, a named General Manager, and the EEO Counselor. Therein, complainant agreed that the agency's actions would resolve his formal complaint to his satisfaction, and that he did not wish to continue in the pre-complaint processing. Effective January 24, 1998, complainant was promoted as part of a reallocation of his position. On January 31, 1998, complainant received a Notice of Right to File a Discrimination Complaint (Notice) but complainant never filed a formal complaint within the fifteen-day period identified in the Notice. On July 17, 2000, complainant resigned from his RFT Custodial Foreman position, effective August 4, 2000. On August 8, 2000, complainant was rehired as an Intermittent Custodian. The record reveals effective January 20, 2001, complainant was separated from agency employment based on abandonment of position. On January 22, 2001, complainant discovered that his name was not on an agency work schedule. As a result, complainant spoke to an agency official regarding his separation, and was informed that employees who do not report to work for two or three weeks are normally discharged. After complainant offered to provide sick slips in support of prior absences, the agency official declined to accept them, but informed complainant to simply re-apply, as positions were constantly opening. By letter dated May 4, 2001, complainant sent a letter described as an EEO complaint, to the agency's EEO office at AAFES Headquarters in Dallas, Texas. Therein, complainant identified a variety of incidents of alleged discrimination, commencing in 1996. On April 9, 2002, complainant transmitted a similar letter and was then directed to an agency EEO Counselor, on May 20, 2002. After informal efforts to resolve his concerns were unsuccessful, complainant filed two formal complaints on April 11, 2002 (Agency No. 02.055) and July 3, 2002 (Agency No. 02.083), respectively. Therein, complainant claimed that the agency discriminated against him on the bases of race (African-American), color (black) and in reprisal for prior EEO activity when: a. in February 1996, he was questioned by [General Manager] and [Security Manager] and then told to report to Criminal Investigation Division of the Military Police (CID); b. from February 5 to March 14, 1996, CID received information that complainant had conspired to commit robbery, [SFC] accused complainant of being in trouble with the German police, and complainant was harassed by [SFC] and [Agency Official] from CID; c. in April 1996, [Store Manager] yelled at complainant, told him if he complained, he would fire him and called him "boy;" d. on July 14, 1997, complainant requested a letter from CID, asking for his records, and CID refused; e. on October 8, 1997, complainant was harassed by the store manager in the presence of his peers; f. on December 3, 1997, complainant's EEO complaint was not properly processed; g. on October 10, 1998, complainant was directed to clean a bathroom that had asbestos in it; h. on February 14, 1999, a Sales Manager wrote complainant up; i. in July 2000, a prospective employer called the Mannheim Main Store for a reference for complainant and was told he did not work there.<1> j. on December 10, 2000, a Custodial Foreman cursed complainant; k. effective January 20, 2001, complainant was separated from agency employment; l. on April 19, 2001, an agency Manager refused to accept information from complainant's doctor; and m. on April 23, 2001, an agency official attempted to obtain information from complainant's place of employment. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The agency thereafter filed Respondent's Motion for Summary Judgment' or in the alternative, an Agency's Motion for Summary Judgment. In its motion, the agency noted that complainant initiated EEO contact on December 1, 1997, and that complainant and the agency entered into a settlement agreement in January 1998. The agency further noted that complainant did not allege breach of the January 1998 agreement, and did not timely file a formal complaint after having received a Notice to do so in January 1998. The agency argued that claims (a) - (f) should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact and for untimely filing of the complaints. The agency also argued that claims (g), (h), (j), (k), (l) and (m) should be dismissed for untimely EEO Counselor contact. The agency found that complainant did not contact an EEO Counselor until May 4, 2001, after the 45-day time limitation period had expired; and that EEO posters outlining the proper procedures for EEO contact were displayed at complainant's former workplace. The agency argued that complainant did not claim that he was unfamiliar with the 45-day limitation period because he had previously met with at least two EEO Counselors. The agency noted in his affidavit dated January 23, 2003, complainant acknowledged there were EEO posters on display at his former workplace, but that he stopped looking at them after he counseled with an EEO Counselor. In support of its arguments, the agency submitted a copy of the former EEO Counselor's affidavit dated February 2, 2004, wherein the former EEO Counselor confirmed that the EEO posters outlining the proper procedures for EEO contact were on display at complainant's former workplace. The agency also argued that claims (b), (d), (e), (h), (j), (l) and (m) should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Furthermore, the agency argued that claim (f) should be dismissed on the grounds that complainant alleged dissatisfaction with the processing of a previously filed EEO complaint. Moreover, with respect to claims (a), (b), (c), (e), (g), (h), (j), (k), (l) and (m), the agency argued that complainant failed to establish a prima facie case of race and color or reprisal discrimination. The agency found that management articulated legitimate, nondiscriminatory reasons for its actions; and that complainant did not establish that more likely than not, management's articulated reasons were a pretext to mask unlawful discrimination. Finally, the agency determined that to the extent that complainant claimed that all of the matters identified here were part of a hostile work environment, he did not establish a prima facie case. On March 26, 2004, the AJ granted summary judgment. The AJ determined that the agency properly set forth the undisputed facts and applicable law in its "Motion for Summary Judgment" and incorporated the Motion in her decision. The AJ determined that complainant failed to present any evidence indicating that his complaints were timely. The AJ further determined that even if the complaints were timely, complainant failed to present any evidence that the claims constituted harassment, or were based on the alleged protected bases. Finally, the AJ found that assuming that complainant established a prima facie case of discrimination, he failed to proffer any evidence to rebut the agency's articulated reasons for its actions. The agency implemented the AJ's decision in a final order dated June 22, 2004. It is this decision that is the subject of the instant appeal. Claims (a) - ( f) The record reveals that complainant first initiated EEO Counselor contact on December 1, 1997, concerning claims (a) - (f). Complainant received a Notice of Right to File a Complaint following his December 1, 1997, but did not file a complaint within the fifteen-day limitation period identified in the Notice. Instead, complainant again contacted an EEO Counselor on May 4, 2001, concerning claims (a) - (f), and initiated a new EEO counseling process. Based on the evidence of record, we find that complainant abandoned his first contact with the EEO Counselor on December 1, 1997. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996). Complainant's re-initiation of EEO Counselor contact, on May 4, 2001, is beyond the forty-five (45) day limitation period. On appeal, complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the agency properly dismissed claims (a) - (f) on the grounds of untimely EEO Counselor contact. Claims (g), (h), (j), and (k) The record reveals that complainant initiated EEO Counselor contact on May 4, 2001, concerning claims (g), (h), (j), and (k), which is well beyond the forty-five (45) day limitation period with regard to those claims. Complainant failed to present adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation time period beyond the forty-five (45)days. Therefore, we find that the agency properly dismissed claims (g), (h), (j), and (k) for untimely EEO Counselor contact. Claims (l) and (m) The Commission determines that the matters identified in claims (l) and (m) do not address a personal loss or harm regarding a term, condition, or privilege of complainant's employment. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that the agency properly dismissed claims (1) and (m) for failure to state a claim. Accordingly, the agency's final order implementing the AJ's dismissal of the instant complaint is AFFIRMED. Because we affirm the dismissal of the complaint for the reason stated herein, we find it unnecessary to address the alternative dismissal grounds, or findings on the merits. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 December 29, 2004 __________________ Date 1The record contains complainant's affidavit dated January 23, 2003. Therein, complainant expressed his wish to have claim (i) withdrawn. Therefore, we will not address claim (i) further herein.	[ "Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996)", "Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S....	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63	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01986184_r.txt	01986184_r.txt	TXT	text/plain	13,384		July 31, 1998	Appeal Number: 01986184 Background: The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. Legal Analysis: 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 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED.	Ramses Vega, ) Appellant, ) ) v. ) Appeal No. 01986184 ) Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs,) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. Appellant received the final agency decision on July 31, 1998. The appeal was postmarked August 7, 1998. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED. This complaint is hereby REMANDED for further processing pursuant to the ORDER below. ORDER The agency is ORDERED to conduct a supplemental investigation which shall include the following actions: The agency is ORDERED to conduct a supplemental investigation with regard to the issue of whether appellant contacted the EEO Coordinator with regard to the matters set forth in the instant complaint within the 45-day limitation period. The agency shall secure a sworn affidavit from the EEO Coordinator with regard to this issue. The agency shall within thirty (30) calendar days of the date this decision becomes final, issue a notice of processing or new final agency decision. A copy of the notice of processing or new final agency decision must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: August 12, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[]	[ -0.06684303283691406, 0.08189431577920914, -0.011282752268016338, -0.06160838529467583, 0.016248472034931183, 0.022166788578033447, 0.026979627087712288, 0.09217389672994614, -0.009854419156908989, 0.041246555745601654, -0.0017939304234459996, 0.012089639902114868, -0.025336960330605507, 0...
64	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01986184.txt	01986184.txt	TXT	text/plain	13,273		August 12, 1999	Appeal Number: 01986184 Background: The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. Legal Analysis: 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 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED.	Ramses Vega v. Department of Veterans Affairs 01986184 August 12, 1999 Ramses Vega, ) Appellant, ) ) v. ) Appeal No. 01986184 ) Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs,) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. Appellant received the final agency decision on July 31, 1998. The appeal was postmarked August 7, 1998. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. BACKGROUND The record indicates that appellant successfully completed a 90-day performance improvement plan on November 12, 1997. Appellant stated that afterwards he felt ignored and alienated from management and the staff. According to appellant, statements were made to a physician in his unit, referring to him as a bad guy. Appellant submitted his letter of resignation on February 6, 1998. The EEO Counselor's report states that appellant initiated contact with an EEO Counselor on March 30, 1998. On May 22, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his national origin (Cuban/Hispanic/Arabian), race (Arabian/Hispanic), religion (Christian), and in reprisal for his previous EEO activity on an ongoing basis with regard to harassment and his working conditions, and on February 6, 1998, when he was constructively discharged. In its final decision, the agency dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. The agency determined that appellant's EEO contact of March 30, 1998, was more than 45 days after February 6, 1998, the latest date at which appellant would have become aware of the alleged discrimination. The agency noted that appellant explained his untimely contact as being the result of not receiving a letter dated March 5, 1998, from the Medical Center Director informing him of the EEO process. The agency stated that appellant was aware of the EEO process as he was involved in prior EEO activity. Finally, the agency stated that EEO posters with instructions on how to file an EEO complaint are displayed in at least several areas of the Medical Center. On appeal, appellant contends that in February or March 1998, he contacted the EEO Coordinator and that the EEO Coordinator informed him that the informal EEO process had to be conducted through his attorney. According to appellant, the EEO Counselor who dealt with him on March 30, 1998, told him that two weeks before the EEO Coordinator had said to expect a call from him. Appellant states that the EEO Coordinator attempted to discourage him from filing his previous complaint of discrimination. Appellant claims that the agency's actions prevented him from making a timely EEO contact. Appellant acknowledges that he was aware of the 45-day limitation period for contacting an EEO Counselor. In response, the agency asserts that appellant has not indicated on what date he contacted the EEO Coordinator, nor does he present any documentation or further information to support his claim. The agency states that the EEO Coordinator denies that appellant contacted her at any time during February or March of 1998. The agency states that the EEO Coordinator is not an EEO Counselor. Finally, the agency maintains that appellant was fully aware of the EEO process and the 45-day limitation period given the fact that he previously engaged in EEO activity. 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 a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Appellant alleged that he was discriminated against when he was subjected to ongoing discrimination with regard to his working conditions and ongoing harassment, and when on February 6, 1998, he was constructively discharged. The agency determined that appellant did not initiate contact with an EEO Counselor until March 30, 1998, after the expiration of the 45-day limitation period. However, we note that appellant claims that he contacted the EEO Coordinator in either February or March of 1998, and that the EEO Coordinator informed him that he could not pursue the EEO process without an attorney. Appellant states that this information delayed his pursuit of the EEO process. We find that a supplemental investigation is necessary in order to determine whether appellant contacted the EEO Coordinator within the 45-day limitation period with regard to the matters set forth in the instant complaint. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact is VACATED. This complaint is hereby REMANDED for further processing pursuant to the ORDER below. ORDER The agency is ORDERED to conduct a supplemental investigation which shall include the following actions: The agency is ORDERED to conduct a supplemental investigation with regard to the issue of whether appellant contacted the EEO Coordinator with regard to the matters set forth in the instant complaint within the 45-day limitation period. The agency shall secure a sworn affidavit from the EEO Coordinator with regard to this issue. The agency shall within thirty (30) calendar days of the date this decision becomes final, issue a notice of processing or new final agency decision. A copy of the notice of processing or new final agency decision must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (R0993) 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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: August 12, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[]	[ -0.06661752611398697, 0.07386203855276108, 0.0047495197504758835, -0.056040871888399124, 0.02683981880545616, 0.0227938424795866, 0.010957321152091026, 0.0860094428062439, 0.0045259008184075356, 0.04518105462193489, 0.013279296457767487, 0.006669903174042702, -0.04214014858007431, 0.019502...
65	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120064702.txt	0120064702.txt	TXT	text/plain	14,499	Sally R. Oliverio, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.	July 13, 2006	Appeal Number: 01200647021 Legal Analysis: 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. The FAD dismissed the complaint on the grounds that complainant failed to timely initiate EEO counseling. It reasoned that complainant formed a reasonable suspicion of discrimination on November 29, 2005, as evidenced by her being suspicious that day of the selecting official's response to her questions and enlisting the help of the union the same day to review the promotion package, but did not contact an EEO counselor until April 19, 2006, beyond the 45 calendar day time limit to do so. On appeal, complainant argues through counsel that she did not form a reasonable suspicion of discrimination until she learned on April 4, 2006, that the selectee was younger and significantly less experienced than herself, and repeats this in an accompanying affidavit. Complainant withdrew her EEO contact before the counselor sent her papers on December 2, 2005, explaining various procedural rights and the role of the EEO counselor. Complainant argues through counsel that she was misled by the EEO counselor into withdrawing her EEO contact. She argues that at that time she had no knowledge about the selectee or her age, was confused as to why she was not chosen so she contacted the EEO office, and did not even know what basis to file the complaint until the EEO counselor suggested age discrimination. Complainant argues that she called the EEO counselor on December 1, 2005 saying she was uncomfortable with her claim because he did not know anything about the selectee, but the counselor did not advise her of the fact-finding component of an EEO claim, nor advise her of the consequences of withdrawing her complaint. She argues that the EEO counselor wrongly persuaded her to drop her EEO claim because she did not have all the information necessary to support her claim. She argues that even the most cursory EEO investigation would have uncovered that the selectee was younger and less experienced than complainant. Complainant's affidavit submitted with this argument makes no statement regarding what she was told or not told by the EEO office and counselor. We find complainant's submissions on appeal unpersuasive. The November 29, 2005, EEO office intake sheet, which is a reliable contemporaneous record, reflects complainant said that the selectee was younger and less experienced. This alone shows a reasonable suspicion of discrimination. Moreover, on that same day, complainant met with the selecting official, and was dissatisfied allegedly because he gave no plausible explanation on why she was not selected. As stated by complainant, she left him feeling that the selection was biased and she was very suspicious. Complainant has strongly suggested that she felt prior to meeting with the selecting official that she was one of the best candidates, i.e., someone in human resources indicated her application was strong, an interview panel member thought she should be selected, and complainant previously worked in the job and was viewed as an excellent performer. All this adds to our finding that complainant had a reasonable suspicion of discrimination by November 29, 2005, and her efforts to have the union review the promotion package was an attempt to get supportive facts. The Commission has found that where a complainant "knowingly and voluntarily withdrew his complaint .... the Commission considers the matter to have been finally abandoned." See Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994). The Commission has held that a complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement, unless there is a showing of coercion. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Also, the dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (October 17, 2005). Complainant argues that the EEO counselor mislead her into withdrawing her November 29, 2005 EEO contact. Significantly, all the contentions she made regarding this were in argument through counsel, none of which were supported by her accompanying affidavit. She does not precisely identify what the counselor said, which is a critical matter. In argument (not her affidavit), complainant contends that the EEO counselor did not advise her of the fact-finding role of the EEO process. However, in a December 2, 2005, letter to complainant, the counselor wrote that even though he discussed his role with her, he was enclosing a document entitled "Role & Responsibilities of the EEO Counselor." A copy of this document sent to complainant after her second EEO contact reveals it states the counselor is an information gatherer. Based on the record, we find it is more likely than not that complainant withdrew her EEO contact on the advice of the union. Complainant argued against interest that the union informed her she could not maintain an EEO claim regarding the non-selection and a grievance attempting to secure additional information at the same time. Two days later, she withdrew her EEO contact. Complainant argues though counsel that she believed that she withdrew her EEO claim without prejudice to refiling, but does not make this contention in her accompanying affidavit. Her withdrawal letter does not suggest it was intended to be made without prejudice. Moreover, in its December 29, 2005, letter to complainant confirming the withdrawal and closure of her EEO claim, the agency wrote that it is the position of the EEOC that a knowing and voluntary withdrawal terminates further consideration of matters raised, and there is no longer a right to file a formal complaint over the withdrawn matters. There is no indication in the record or claim by complainant that complainant attempted to then quickly explain to the EEO office that she did not intend to withdraw her claim with prejudice. Instead, she waited until April 19, 2006, to contact the EEO counselor, after she received what she considered to be her supportive facts. Based on the above, the FAD dismissing complainant's complaint is affirmed.	Sally R. Oliverio, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01200647021 Agency No. 2004-0540-2006102098 DECISION Complainant filed a timely appeal with this Commission from a final agency decision (FAD) dated July 13, 2006, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In her complaint, complainant alleged that she was subjected to discrimination based on age (born in 1951) and reprisal for prior protected EEO activity in 2003 (an appeal to the Merit Systems Protection Board (MSPB) claiming an action was taken against her because of illness-apparently a Rehabilitation Act claim) when she was notified on November 3, 2005, that she was not selected for promotion to the position of Program Support Assistant (OA), GS-303-07/08, advertised under announcement numbers MP-05-65 and VAC-DR-05-0250. Complainant was notified in writing by memorandums dated November 2, 2005 that she was referred for consideration but not selected, and of the name of the selectee. On November 29, 2005, complainant met with the selecting official to get an explanation of why she was not selected. According to complainant, he gave no plausible explanation, he had no answers to her direct questions, and she left him feeling the selection was biased and very suspicious. She contacted the EEO office the same day. The EEO intake sheet, which was completed the same day, indicates that complainant was contending that she was discriminated against based on her age when she was not selected for promotion. The intake sheet reflects that complainant stated that the selectee was younger and less experienced than complainant. On the same day, complainant contacted a union representative to obtain assistance in securing the promotion package for review. According to complainant's appeal argument through counsel, the union explained that they could file a grievance to gain access to the hiring records, but she could not file a grievance and still continue with an EEO complaint. Two days later, on December 1, 2005, complainant withdrew her informal EEO claim in writing, indicating that at this time, she decided not to pursue the claim through the EEO process, and that she was withdrawing the EEO claim and wished to close it. On January 11, 2006, she filed a union grievance requesting that the union be permitted to review the application package. After some delay, on April 4, 2006, a union steward was permitted to review the package and at that time, according to complainant, she was advised that the selectee was much less qualified and much younger than complainant. Complainant contends that this was when she first learned the selection was biased based on age and reprisal discrimination. Complainant reinitiated contact with an EEO counselor on April 19, 2006, alleging age and reprisal discrimination when she was not selected for promotion to the above position. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) and .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred or for reasons considered sufficient by the agency or Commission. 29 C.F.R. § 1614.105(a)(2). 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. The FAD dismissed the complaint on the grounds that complainant failed to timely initiate EEO counseling. It reasoned that complainant formed a reasonable suspicion of discrimination on November 29, 2005, as evidenced by her being suspicious that day of the selecting official's response to her questions and enlisting the help of the union the same day to review the promotion package, but did not contact an EEO counselor until April 19, 2006, beyond the 45 calendar day time limit to do so. On appeal, complainant argues through counsel that she did not form a reasonable suspicion of discrimination until she learned on April 4, 2006, that the selectee was younger and significantly less experienced than herself, and repeats this in an accompanying affidavit. Complainant withdrew her EEO contact before the counselor sent her papers on December 2, 2005, explaining various procedural rights and the role of the EEO counselor. Complainant argues through counsel that she was misled by the EEO counselor into withdrawing her EEO contact. She argues that at that time she had no knowledge about the selectee or her age, was confused as to why she was not chosen so she contacted the EEO office, and did not even know what basis to file the complaint until the EEO counselor suggested age discrimination. Complainant argues that she called the EEO counselor on December 1, 2005 saying she was uncomfortable with her claim because he did not know anything about the selectee, but the counselor did not advise her of the fact-finding component of an EEO claim, nor advise her of the consequences of withdrawing her complaint. She argues that the EEO counselor wrongly persuaded her to drop her EEO claim because she did not have all the information necessary to support her claim. She argues that even the most cursory EEO investigation would have uncovered that the selectee was younger and less experienced than complainant. Complainant's affidavit submitted with this argument makes no statement regarding what she was told or not told by the EEO office and counselor. We find complainant's submissions on appeal unpersuasive. The November 29, 2005, EEO office intake sheet, which is a reliable contemporaneous record, reflects complainant said that the selectee was younger and less experienced. This alone shows a reasonable suspicion of discrimination. Moreover, on that same day, complainant met with the selecting official, and was dissatisfied allegedly because he gave no plausible explanation on why she was not selected. As stated by complainant, she left him feeling that the selection was biased and she was very suspicious. Complainant has strongly suggested that she felt prior to meeting with the selecting official that she was one of the best candidates, i.e., someone in human resources indicated her application was strong, an interview panel member thought she should be selected, and complainant previously worked in the job and was viewed as an excellent performer. All this adds to our finding that complainant had a reasonable suspicion of discrimination by November 29, 2005, and her efforts to have the union review the promotion package was an attempt to get supportive facts. The Commission has found that where a complainant "knowingly and voluntarily withdrew his complaint .... the Commission considers the matter to have been finally abandoned." See Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994). The Commission has held that a complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement, unless there is a showing of coercion. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Also, the dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (October 17, 2005). Complainant argues that the EEO counselor mislead her into withdrawing her November 29, 2005 EEO contact. Significantly, all the contentions she made regarding this were in argument through counsel, none of which were supported by her accompanying affidavit. She does not precisely identify what the counselor said, which is a critical matter. In argument (not her affidavit), complainant contends that the EEO counselor did not advise her of the fact-finding role of the EEO process. However, in a December 2, 2005, letter to complainant, the counselor wrote that even though he discussed his role with her, he was enclosing a document entitled "Role & Responsibilities of the EEO Counselor." A copy of this document sent to complainant after her second EEO contact reveals it states the counselor is an information gatherer. Based on the record, we find it is more likely than not that complainant withdrew her EEO contact on the advice of the union. Complainant argued against interest that the union informed her she could not maintain an EEO claim regarding the non-selection and a grievance attempting to secure additional information at the same time. Two days later, she withdrew her EEO contact. Complainant argues though counsel that she believed that she withdrew her EEO claim without prejudice to refiling, but does not make this contention in her accompanying affidavit. Her withdrawal letter does not suggest it was intended to be made without prejudice. Moreover, in its December 29, 2005, letter to complainant confirming the withdrawal and closure of her EEO claim, the agency wrote that it is the position of the EEOC that a knowing and voluntary withdrawal terminates further consideration of matters raised, and there is no longer a right to file a formal complaint over the withdrawn matters. There is no indication in the record or claim by complainant that complainant attempted to then quickly explain to the EEO office that she did not intend to withdraw her claim with prejudice. Instead, she waited until April 19, 2006, to contact the EEO counselor, after she received what she considered to be her supportive facts. Based on the above, the FAD dismissing complainant's complaint is affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 June 19, 2007 __________________ Date 1 Due to a new Commission data system, this case has been redesignated with the above-referenced appeal number. ?? ?? ?? ?? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25, 1994)", "Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F...	[ -0.11247319728136063, 0.04272637143731117, -0.002587133552879095, 0.02584013156592846, 0.019191304221749306, 0.1167810931801796, 0.02268027514219284, 0.03985767439007759, -0.060881614685058594, 0.06948146224021912, 0.03264925256371498, -0.04453125223517418, 0.006933083292096853, -0.0103862...
66	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170318.txt	0120170318.txt	TXT	text/plain	17,444	Marguerite W,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.	October 6, 2016	Appeal Number: 0120170318 Background: At the time of events giving rise to this complaint, Complainant worked as a Purchase Agent for Prosthetics (GS-7) at the Agency's VA Medical Center in Perry Point, Maryland. On June 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of national origin (African) and reprisal for prior protected EEO activity when: 1. In June 2012, her supervisor ("S1"), Supervisory Purchase Agent for Prosthetics, embarrassed her when she stated, "Your patients do not understand you because you talk too fast and your accent gets in the way;" 2. On April 20, 2013, S1 failed to assist her when the fax machine stopped working; 3. On April 28, 2015, S1 yelled, "You do not come here to collect a paycheck for doing nothing" and instructed her to complete 32 assigned tasks; and 4. On October 29, 2015, she received a proposal Letter of Removal from S1. Complainant alleges that S1 has subjected her to ongoing harassment since 2012, and that S1 bullies and "targets" her specifically by holding her to different standards and treating her more harshly than her America-born coworkers. For instance, if one of Complainant's coworkers had a problem using a fax machine, Complainant alleges that S1 did not question the coworkers' proficiency in using the equipment and was quick to help, if necessary, providing alternate means of delivery, such as overnight mailing materials. The fax machine referenced in the April 20, 2013, allegation was dedicated for orders to a particular vendor and was constantly jammed or malfunctioning, preventing Complainant from submitting documents and delaying orders to that vendor. When Complainant asked S1 for assistance, she alleges that S1 accused her of being unable to operate a fax machine and rather than provide alternate methods for delivering the order documentation, S1 blamed Complainant for the resulting delays. Complainant also alleges that S1 undermines her performance by assigning an unreasonably heavy workload, and pressuring her to close pending or incomplete orders, in violation of Agency policy. Regarding the April 28, 2015 allegation, the record includes a statement from a witness, who was so concerned when she overheard S1 repeatedly shout "Just do your Job" at Complainant in a "very degrading and demeaning tone," that she reported it to her supervisor. This incident, along with the EEO training she received on May 1, 2015, inspired Complainant to seek EEO counseling. Complainant raised her first three claims with her "Local EEO Office," also referred to as the facility EEO Office on May 6, 2015. Although Complainant attempted to file a complaint, her EEO contact informed her that they could only provide mediation services, and it appears Complainant did not pursue claims 1, 2, and 3 further until May and June 2016. On October 29, 2015, Complainant received the proposed removal letter for "unacceptable performance," which she appealed with the assistance of counsel. The Director issued a letter reversing the proposed removal, stating the charges were not sustained. On appeal, Complainant asserts that she did not visit the facility EEO Office on May 16, 2016 intending to raise the October 29, 2015 allegation, but to obtain documents from her previous attempt to file an EEO Complainant. However, this time she contacted the facility EEO Office, for reasons undisclosed in the record, Complainant was contacted by an EEO Counselor from the Office of Resolution Management ("ORM") who provided pre-complaint counseling for all four claims and provided the necessary forms to file her formal complaint. The Agency cites May 16, 2016, as the date of Complainant's first EEO contact. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Legal Analysis: 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. Under 29 C.F.R. §1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, Complainant satisfied the EEO Counselor contact requirement on May 6, 2015 even though she did not contact the Office of Resolution Management ("ORM") as dictated in the Agency's EEO regulations. We find that an EEO office within the facility, which Complainant reasonably considered her "Local EEO Office" to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process multiple times within the 45 day limitation period in phone calls and emails with the facility EEO office's EEO Assistant ("EA"). Complainant believed EA would file an EEO Complaint on her behalf, but on May 21, 2015, EA referred her to a union representative instead. Aware of the time limitation and that she could not pursue an EEO complaint through the Union, Complainant contacted EA again specifying that she wanted to file a complaint. Complainant alleges, and the record supports, that the only option EA provided to her was mediation between Complainant and S1, facilitated by EA and a union representative, which Complainant declined. The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because Complainant was aware that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." 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 has not met this burden with respect to Complainant's knowledge that she had to contact ORM. The training documents in the record do not specify this information and although the Agency references an affidavit by the EEO Manager confirming Complainant was aware that EEO Complaints are to be brought to ORM, the affidavit is not in the record. Notwithstanding the ORM requirement, we note that Complainant states that she went to the facility EEO office again on May 16, 2016 to retrieve her documents, which the Agency considers EEO contact. We find this inconsistency and the demonstrated lack of clarification from individuals in a position to direct Complainant to ORM sufficient to excuse Complainant from pursuing her initial complaint further prior to May 16, 2016. See Myers v. Dep't of the Army, EEOC Appeal No. 0120120759 (May 1, 2012) (Complainant's delay should be excused when her EEO counselor first advised her to pursue her complaint with another office.) Claims 1, 2, and 3 The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period." EEOC Compliance Manual, Section 2, Threshold Issues al 2 - 75 (revised July 21, 2005) referencing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). For the reasons stated above, we find May 6, 2015 to be the date Complainant initiated EEO contact. Hence, Complainant timely raised Claim 3, which allegedly occurred on April 28, 2015 with an EEO Counselor. As Complainant is raising a harassment complaint, Claims one and two are also considered timely under Morgan. Claim 4 The 45 day limitation period for Claim 4 was triggered on October 29, 2015, when Complainant became aware of the alleged discriminatory act, a Letter of Proposed Removal. There is no evidence that Complainant sought EEO counseling with the facility EEO Office, ORM, or any other office logically connected to the EEO process. Claim 4 was properly dismissed under 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO Counselor. Final Decision: Accordingly, the Agency's final decision dismissing Claims 1, 2, and 3 of Complainant's complaint is REVERSED, and the Agency's final decision dismissing Claim 4 is AFFIRMED.	Marguerite W,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120170318 Agency No. 200405122016103734 DECISION Complainant timely appealed to this Commission from the Agency's October 6, 2016 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 worked as a Purchase Agent for Prosthetics (GS-7) at the Agency's VA Medical Center in Perry Point, Maryland. On June 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of national origin (African) and reprisal for prior protected EEO activity when: 1. In June 2012, her supervisor ("S1"), Supervisory Purchase Agent for Prosthetics, embarrassed her when she stated, "Your patients do not understand you because you talk too fast and your accent gets in the way;" 2. On April 20, 2013, S1 failed to assist her when the fax machine stopped working; 3. On April 28, 2015, S1 yelled, "You do not come here to collect a paycheck for doing nothing" and instructed her to complete 32 assigned tasks; and 4. On October 29, 2015, she received a proposal Letter of Removal from S1. Complainant alleges that S1 has subjected her to ongoing harassment since 2012, and that S1 bullies and "targets" her specifically by holding her to different standards and treating her more harshly than her America-born coworkers. For instance, if one of Complainant's coworkers had a problem using a fax machine, Complainant alleges that S1 did not question the coworkers' proficiency in using the equipment and was quick to help, if necessary, providing alternate means of delivery, such as overnight mailing materials. The fax machine referenced in the April 20, 2013, allegation was dedicated for orders to a particular vendor and was constantly jammed or malfunctioning, preventing Complainant from submitting documents and delaying orders to that vendor. When Complainant asked S1 for assistance, she alleges that S1 accused her of being unable to operate a fax machine and rather than provide alternate methods for delivering the order documentation, S1 blamed Complainant for the resulting delays. Complainant also alleges that S1 undermines her performance by assigning an unreasonably heavy workload, and pressuring her to close pending or incomplete orders, in violation of Agency policy. Regarding the April 28, 2015 allegation, the record includes a statement from a witness, who was so concerned when she overheard S1 repeatedly shout "Just do your Job" at Complainant in a "very degrading and demeaning tone," that she reported it to her supervisor. This incident, along with the EEO training she received on May 1, 2015, inspired Complainant to seek EEO counseling. Complainant raised her first three claims with her "Local EEO Office," also referred to as the facility EEO Office on May 6, 2015. Although Complainant attempted to file a complaint, her EEO contact informed her that they could only provide mediation services, and it appears Complainant did not pursue claims 1, 2, and 3 further until May and June 2016. On October 29, 2015, Complainant received the proposed removal letter for "unacceptable performance," which she appealed with the assistance of counsel. The Director issued a letter reversing the proposed removal, stating the charges were not sustained. On appeal, Complainant asserts that she did not visit the facility EEO Office on May 16, 2016 intending to raise the October 29, 2015 allegation, but to obtain documents from her previous attempt to file an EEO Complainant. However, this time she contacted the facility EEO Office, for reasons undisclosed in the record, Complainant was contacted by an EEO Counselor from the Office of Resolution Management ("ORM") who provided pre-complaint counseling for all four claims and provided the necessary forms to file her formal complaint. The Agency cites May 16, 2016, as the date of Complainant's first EEO contact. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. 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. Under 29 C.F.R. §1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, Complainant satisfied the EEO Counselor contact requirement on May 6, 2015 even though she did not contact the Office of Resolution Management ("ORM") as dictated in the Agency's EEO regulations. We find that an EEO office within the facility, which Complainant reasonably considered her "Local EEO Office" to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process multiple times within the 45 day limitation period in phone calls and emails with the facility EEO office's EEO Assistant ("EA"). Complainant believed EA would file an EEO Complaint on her behalf, but on May 21, 2015, EA referred her to a union representative instead. Aware of the time limitation and that she could not pursue an EEO complaint through the Union, Complainant contacted EA again specifying that she wanted to file a complaint. Complainant alleges, and the record supports, that the only option EA provided to her was mediation between Complainant and S1, facilitated by EA and a union representative, which Complainant declined. The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because Complainant was aware that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." 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 has not met this burden with respect to Complainant's knowledge that she had to contact ORM. The training documents in the record do not specify this information and although the Agency references an affidavit by the EEO Manager confirming Complainant was aware that EEO Complaints are to be brought to ORM, the affidavit is not in the record. Notwithstanding the ORM requirement, we note that Complainant states that she went to the facility EEO office again on May 16, 2016 to retrieve her documents, which the Agency considers EEO contact. We find this inconsistency and the demonstrated lack of clarification from individuals in a position to direct Complainant to ORM sufficient to excuse Complainant from pursuing her initial complaint further prior to May 16, 2016. See Myers v. Dep't of the Army, EEOC Appeal No. 0120120759 (May 1, 2012) (Complainant's delay should be excused when her EEO counselor first advised her to pursue her complaint with another office.) Claims 1, 2, and 3 The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period." EEOC Compliance Manual, Section 2, Threshold Issues al 2 - 75 (revised July 21, 2005) referencing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). For the reasons stated above, we find May 6, 2015 to be the date Complainant initiated EEO contact. Hence, Complainant timely raised Claim 3, which allegedly occurred on April 28, 2015 with an EEO Counselor. As Complainant is raising a harassment complaint, Claims one and two are also considered timely under Morgan. Claim 4 The 45 day limitation period for Claim 4 was triggered on October 29, 2015, when Complainant became aware of the alleged discriminatory act, a Letter of Proposed Removal. There is no evidence that Complainant sought EEO counseling with the facility EEO Office, ORM, or any other office logically connected to the EEO process. Claim 4 was properly dismissed under 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO Counselor. CONCLUSION Accordingly, the Agency's final decision dismissing Claims 1, 2, and 3 of Complainant's complaint is REVERSED, and the Agency's final decision dismissing Claim 4 is AFFIRMED. Claims 1, 2, and 3 are hereby REMANDED in accordance with the Order below. ORDER (E1016) 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 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 (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 (M0416) 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 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. The requests 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 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 (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 March 9, 2017 __________________ Date ------------------------------------------------------------ ------------------------------------------------------------ 8 0120170318	[ "Cox v. HUD, EEOC Request No. 05980083 (July 30, 1998)", "Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)", "Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990)", "Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)", "Williams v. Dep't of Defense...	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67	https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020002773.pdf	2020002773.pdf	PDF	application/pdf	18,891	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency.	January 16, 2020	Appeal Number: 2020002773 Background: During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020002773 Agency No. ARCEHECESA19NOV04508 DECISION Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated January 16, 2020, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the conclusion of her temporary detail on September 27, 2019. Complainant asserts that she is performing duties in excess of her EEO Specialist duties, without the commensurate pay and accurate performance evaluation. Complainant has alleged a harm to a term, condition, or privilege of her employment. The Agency’s dismissal pursuant to 29 C.F.R. 1614.107(a)(1) was improper. The Agency , however, dismissed Complainant’s September 27, 2019 non -selection for untimely EEO C ounselor contact. As noted above, t he Agency’s final decision does not identify the date of contact . However, the EEO Counselor’s Report and Complainant’s statements reflect that the 2 Now identified as claim ( 1). initial EEO c ontact occurred on November 15, 2019. Further, in arguing on appeal that the September 2019 non -selection was “not the last time I felt discriminated against”, Complainant acknowledges the September 2019 non-selection was beyond the forty -five day time limitation. Therefore, as a discrete event, we find that the dismissal of claim (1) was appropriate. Complainant has not provided any justification for extending or tolling the time limit. Final ly, the record states that the Agency again posted the same Omaha, Nebraska EEO Director position in early December 2019 and Complainant applied . In the event that Complainant was not chosen for that vacancy announce ment and filed an EEO complaint on the non- selection , the Agency is advised to consider consolidating the processing of that complaint with the instant case, if doing so would improve the overall accuracy and efficiency of addressing Complainant’s belief that the hiring and selection process for the EEO Director position was discriminatory. CONCLUSION The Agency’s final claim (1) was proper and is AFFIRMED. However, the Agency’s dismiss al of claims (2) and (3) is REVERSED. Claims (2) and (3) are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (claims (2) and (3)) 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 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within s even (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contai n supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commiss ion 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, i ncluding any petition for enforcement, will be terminated . See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 dec ision. 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 expira tion 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 (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 comp laint. 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 termina te 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 d irectly 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 17, 2020 Date	[ "Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.405(c)", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. §...	[ -0.08006153255701065, 0.10108232498168945, 0.0411948598921299, 0.019706275314092636, 0.03258546069264412, -0.023097200319170952, 0.015662217512726784, -0.02185562252998352, -0.0180567167699337, 0.05735597014427185, 0.02636658400297165, -0.06448759138584137, 0.00806882418692112, -0.00941155...
68	https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020002773.pdf	2020002773.pdf	PDF	application/pdf	18,891	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency.	January 16, 2020	Appeal Number: 2020002773 Background: During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020002773 Agency No. ARCEHECESA19NOV04508 DECISION Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated January 16, 2020, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the conclusion of her temporary detail on September 27, 2019. Complainant asserts that she is performing duties in excess of her EEO Specialist duties, without the commensurate pay and accurate performance evaluation. Complainant has alleged a harm to a term, condition, or privilege of her employment. The Agency’s dismissal pursuant to 29 C.F.R. 1614.107(a)(1) was improper. The Agency , however, dismissed Complainant’s September 27, 2019 non -selection for untimely EEO C ounselor contact. As noted above, t he Agency’s final decision does not identify the date of contact . However, the EEO Counselor’s Report and Complainant’s statements reflect that the 2 Now identified as claim ( 1). initial EEO c ontact occurred on November 15, 2019. Further, in arguing on appeal that the September 2019 non -selection was “not the last time I felt discriminated against”, Complainant acknowledges the September 2019 non-selection was beyond the forty -five day time limitation. Therefore, as a discrete event, we find that the dismissal of claim (1) was appropriate. Complainant has not provided any justification for extending or tolling the time limit. Final ly, the record states that the Agency again posted the same Omaha, Nebraska EEO Director position in early December 2019 and Complainant applied . In the event that Complainant was not chosen for that vacancy announce ment and filed an EEO complaint on the non- selection , the Agency is advised to consider consolidating the processing of that complaint with the instant case, if doing so would improve the overall accuracy and efficiency of addressing Complainant’s belief that the hiring and selection process for the EEO Director position was discriminatory. CONCLUSION The Agency’s final claim (1) was proper and is AFFIRMED. However, the Agency’s dismiss al of claims (2) and (3) is REVERSED. Claims (2) and (3) are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (claims (2) and (3)) 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 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within s even (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contai n supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commiss ion 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, i ncluding any petition for enforcement, will be terminated . See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 dec ision. 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 expira tion 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 (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 comp laint. 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 termina te 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 d irectly 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 17, 2020 Date	[ "Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.405(c)", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. §...	[ -0.08006153255701065, 0.10108232498168945, 0.0411948598921299, 0.019706275314092636, 0.03258546069264412, -0.023097200319170952, 0.015662217512726784, -0.02185562252998352, -0.0180567167699337, 0.05735597014427185, 0.02636658400297165, -0.06448759138584137, 0.00806882418692112, -0.00941155...
69	https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020002773.pdf	2020002773.pdf	PDF	application/pdf	18,891	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency.	January 16, 2020	Appeal Number: 2020002773 Background: During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the	Haydee A. ,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020002773 Agency No. ARCEHECESA19NOV04508 DECISION Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated January 16, 2020, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an EEO Specialist for the U.S. Army Corp of Engineers, in Omaha, Nebraska. Complainant accepted a 120 -day temporary detail to the EEO Manager position, from June through September 28, 2019. In late August 2019, Complainant applied to a job posting for the vacant EEO Manager position (Announcement No. WTH199177676208). On September 27, 2019, Complainant was informed, by email and the Deputy Commander (hereinafter “Supervisor”), that she was not selected for the position. Days later, the position was re posted as a “non- competitive opportunity, GS -0260-12, EEO Manager – Omaha, N E”. On October 4, 2019 Complainant applied for the non- competitive opportunity. During her mid- term feedback session with Supervisor, on November 15, 2019, Complainant asked about filling the position. He stated that Human Resources (HR) told him no one had applied. Further, Supervisor explained that he could not just give Complainant the job, but had to wait to advertise it as a permanent position. When Complainant stated that she had applied to the non- competitive opening, Supervisor did not respond t o her statement. Suspecting that her non- selection was reprisal for her prior EEO activity, Complainant contacted an EEO Counselor that same day. Complainant explained to the EEO Counselor that the various events surrounding the hiring process and her n on-selection for the Omaha District EEO Manager position were discriminatory. Complainant alleged that the hiring process was inconsistent with prior Agency practices and policies. Complainant believed that her non- selection was in reprisal for the profe ssional EEO advice she had provided Agency managers. In particular she noted the Commander’s belief that many people abuse the EEO process and his efforts to “make sure supervisors get a fair shake before being assumed guilty”. The Commander was the Sele cting Official (hereinafter SO) for Complainant’s September 2019 non- selection. While Complainant continued with the informal process, on December 2, 2019, the EEO Manager position was advertised again. The posting was initially open until December 12, 2019, but later extended to December 23, 2019. On December 20, 2019, Complainant applied to the vacancy and found to be qualified the next week. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on December 31, 2019, Complainant filed a formal complaint based on sex and reprisal for prior protected EEO activity. Specifically, the claims were framed as follows: a. On December 13, 2019, Complainant was told that [SO] was the Selection Official and [Supervisor] was the S election Panel Chair. Complainant’s statement that [EEO Counselor] mentioned, that [SO] stated the following for a justification for not hiring her: “I need someone stronger. She’s a wonderful individual and good person, but I do not want her as the EEO Chief in my division.” Based on that information, Complainant adjusted her bases to add sex (female) to her claim ; b. On December 13, 2019, Complainant received an email sent by [Supervisor] which referred to his discussions with Chief of Resource Management, regarding how the EEO Manager position was to be filled and how to brief information at the Corporate Board meeting ; c. On December 10, 2019, Complainant received an email that extended the EEO Manager position from December 12, 2019 to December 23, 2019, which was perceived by Complainant as the Agency wanting someone other than her to apply; d. On December 3, 2019, after a panel member asked Complainant for her EEO opinion during a GS -15 selection panel, [Agency manager] visibly sat up in his chair, leaned over the table, shook his head many times, and verbally disrespected Complainant when he interrupted her comments to say he perceived the candidate’s statements in a different manner. e. On December 2, 2019, Complainant received an email stating that the EEO Manager position was advertised again (WTHI191745784854); which was perceived that [Supervisor] was either given inaccurate information from [Agency Manager] earlier or [Supervisor] chose to proceed because Complainant filed an EEO complaint; f. On November 15, 2019, Complainant was told by [Supervisor] that he sought advice from [SO] and [another Agency manager] after Complainant interviewed on September 10, 2019 for the EEO Manager permanent position; g. On November 15, 2019, Compl ainant was told by [Supervisor] that HR informed him no one applied for the non -competitive permanent GS -12 EEO Manager position. Ho wever, Complainant told him on October 17, 2019 that she had applied; h. On October 4, 2019, Complainant applied for the non- comp etitive, permanent GS -2 EEO Manager position and was not given any feedback on the status of the hiring process after the position closed on October 18, 2019. i. On September 27, 2019, Complainant was told by [Supervisor] that she was not selected for the permanent EEO Manager position (WTHI199177676208) based on managerial and communication concerns; and, j. From September 27, 2019 – present, Complainant has been accomplishing EEO Specialist and EEO Manager Duties . In addition, [Supervisor] was aware becaus e on November 15, 2019, he had intentions of rewriting Complainant’s rating elements to reflect the tasks that she was performing. On January 16, 2020, the Agency issued a decision dismissing the formal complaint. Specifically, and without any analysis, the Agency dismissed claims (a) through (h) and (j) for failure to state a claim. The Agency dismissed c laim (i) for untimely EEO C ounselor contact. While it did not identify the date of Complainant’s contact, the Agency reasoned that it occurred fifty days after the allegedly discriminatory event. Final ly, the Agency noted that claims (a) and (b) were not counseled. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As an initial matter, we find the framing of the claims in the instan t case to be flawed and will be addressed more concisely than the Agency has identified them. Specifically, a fair reading of the formal complaint reflects that Complainant believes she was discriminated against when: (1) On September 27, 2019, she was not selected for the EEO Manager position, under Announcement No. WTH199177676208; (2) On November 15, 2019, Complainant learned she was not selected for the non-competitive, permanent EEO Manager position announced on or about October 1, 2019; and, (3) From September 27, 2019 until present, Complainant has been performing duties beyond her EEO Specialist position description (i.e. performing EEO Manager duties without the associated pay or evaluations). Rather than describing Complainant’s allegations of discrimination, the claims set forth in the Agency’s final decision are a mere elaboration of facts related to the non -selections and Complainant’s managerial responsibilities. As noted above, the Agency dismissed the formal complaint, with the except ion of claim (i) 2, for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal s ector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994). In claims (1) and (2), Complainant alleges she was not selected for the EEO Manager position due to her sex and/or prior protected EEO activity. Complainant contends, in claim (3), that she continues to perform the EEO Manager duties afte r the conclusion of her temporary detail on September 27, 2019. Complainant asserts that she is performing duties in excess of her EEO Specialist duties, without the commensurate pay and accurate performance evaluation. Complainant has alleged a harm to a term, condition, or privilege of her employment. The Agency’s dismissal pursuant to 29 C.F.R. 1614.107(a)(1) was improper. The Agency , however, dismissed Complainant’s September 27, 2019 non -selection for untimely EEO C ounselor contact. As noted above, t he Agency’s final decision does not identify the date of contact . However, the EEO Counselor’s Report and Complainant’s statements reflect that the 2 Now identified as claim ( 1). initial EEO c ontact occurred on November 15, 2019. Further, in arguing on appeal that the September 2019 non -selection was “not the last time I felt discriminated against”, Complainant acknowledges the September 2019 non-selection was beyond the forty -five day time limitation. Therefore, as a discrete event, we find that the dismissal of claim (1) was appropriate. Complainant has not provided any justification for extending or tolling the time limit. Final ly, the record states that the Agency again posted the same Omaha, Nebraska EEO Director position in early December 2019 and Complainant applied . In the event that Complainant was not chosen for that vacancy announce ment and filed an EEO complaint on the non- selection , the Agency is advised to consider consolidating the processing of that complaint with the instant case, if doing so would improve the overall accuracy and efficiency of addressing Complainant’s belief that the hiring and selection process for the EEO Director position was discriminatory. CONCLUSION The Agency’s final claim (1) was proper and is AFFIRMED. However, the Agency’s dismiss al of claims (2) and (3) is REVERSED. Claims (2) and (3) are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (claims (2) and (3)) 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 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within s even (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contai n supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commiss ion 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, i ncluding any petition for enforcement, will be terminated . See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 dec ision. 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 expira tion 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 (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 comp laint. 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 termina te 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 d irectly 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 17, 2020 Date	[ "Diaz v. Dep’t of the Air Force , EEOC Request No. 05931049 (A pr. 21, 1994)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.405(c)", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. §...	[ -0.08006153255701065, 0.10108232498168945, 0.0411948598921299, 0.019706275314092636, 0.03258546069264412, -0.023097200319170952, 0.015662217512726784, -0.02185562252998352, -0.0180567167699337, 0.05735597014427185, 0.02636658400297165, -0.06448759138584137, 0.00806882418692112, -0.00941155...
70	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A41549_r.txt	01A41549_r.txt	TXT	text/plain	7,773	Eugene E. Crosier v. Department of the Treasury 01A41549 July 14, 2004 . Eugene E. Crosier, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.	July 14, 2004	Appeal Number: 01A41549 Complaint Allegations: In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), sex (male), and age (D.O.B. 7/11/45) when he was terminated. The Commission notes that a notification of personnel action states that complainant resigned from the agency on April 17, 2003. Case Facts: Legal Analysis: Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor. In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), sex (male), and age (D.O.B. 7/11/45) when he was terminated. The Commission notes that a notification of personnel action states that complainant resigned from the agency on April 17, 2003. The record shows that complainant initially contacted the agency's EEO office by letter dated May 5, 2003. In his May 5, 2003 letter, complainant stated that he was unaware of the agency's EEO office and requested that the EEO office advise him if it required additional facts or information about his case. In addition, complainant enclosed a letter he had written to the Commission alleging discrimination and a letter he had written to National Treasury Employees Union complaining of employment issues. By letter dated May 9, 2003, the agency advised complainant of the 45-day time limit to contact an EEO Counselor, provided complainant with the EEO office telephone number and EEO brochure and informed complainant that EEO posters are posted throughout the agency advising employees of their EEO rights and responsibilities. The record shows that the next time complainant contacted the EEO office was by letter dated September 9, 2003. In his September 9, 2003 letter, complainant alleged that the agency and National Treasury Employees Union have acted or failed to act in violation of his civil rights. By letter dated September 12, 2003, the EEO office responded to complainant's September 9, 2003 letter, and again advised complainant of the 45-day time frame to contact an EEO counselor and requested that he contact the EEO office within 15 days of receipt of the letter. There is no indication in the record that complainant responded to the September 12, 2003 letter. By letter dated September 29, 2003, the EEO office sent Complainant a letter stating that his failure to respond has resulted in his inquiry being closed. On October 25, 2003, complainant filed a formal complaint. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that raises a matter that has not been brought to the attention of a counselor and is not like or related to a matter that has been brought to the attention of a counselor. The Commission finds that the agency properly dismissed the complaint on the grounds that complainant failed to raise the matter with an EEO Counselor. The Commission has reviewed the record, and finds that it is absent of any indication that complainant received EEO Counseling regarding the matters raised in his formal complaint. Specifically, the Commission finds that complainant filed a formal complaint on October 25, 2003, but that he received no EEO counseling prior to doing so. The record shows that on May 9, 2003, the agency responded to complainant's May 5, 2003 letter, advising him of the EEO process and the EEO office telephone number. However, the record shows that complainant did not contact the EEO office again until September 9, 2003, approximately 4 months after the EEO office's May 9, 2003 letter. The Commission finds that complainant has filed a complaint that has not been brought to the attention of an EEO Counselor with the necessary intent to commence the EEO process . Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.	Eugene E. Crosier v. Department of the Treasury 01A41549 July 14, 2004 . Eugene E. Crosier, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. Appeal No. 01A41549 Agency No. 04-3025 DECISION Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to contact an EEO Counselor. In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), sex (male), and age (D.O.B. 7/11/45) when he was terminated. The Commission notes that a notification of personnel action states that complainant resigned from the agency on April 17, 2003. The record shows that complainant initially contacted the agency's EEO office by letter dated May 5, 2003. In his May 5, 2003 letter, complainant stated that he was unaware of the agency's EEO office and requested that the EEO office advise him if it required additional facts or information about his case. In addition, complainant enclosed a letter he had written to the Commission alleging discrimination and a letter he had written to National Treasury Employees Union complaining of employment issues. By letter dated May 9, 2003, the agency advised complainant of the 45-day time limit to contact an EEO Counselor, provided complainant with the EEO office telephone number and EEO brochure and informed complainant that EEO posters are posted throughout the agency advising employees of their EEO rights and responsibilities. The record shows that the next time complainant contacted the EEO office was by letter dated September 9, 2003. In his September 9, 2003 letter, complainant alleged that the agency and National Treasury Employees Union have acted or failed to act in violation of his civil rights. By letter dated September 12, 2003, the EEO office responded to complainant's September 9, 2003 letter, and again advised complainant of the 45-day time frame to contact an EEO counselor and requested that he contact the EEO office within 15 days of receipt of the letter. There is no indication in the record that complainant responded to the September 12, 2003 letter. By letter dated September 29, 2003, the EEO office sent Complainant a letter stating that his failure to respond has resulted in his inquiry being closed. On October 25, 2003, complainant filed a formal complaint. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the 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. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that raises a matter that has not been brought to the attention of a counselor and is not like or related to a matter that has been brought to the attention of a counselor. The Commission finds that the agency properly dismissed the complaint on the grounds that complainant failed to raise the matter with an EEO Counselor. The Commission has reviewed the record, and finds that it is absent of any indication that complainant received EEO Counseling regarding the matters raised in his formal complaint. Specifically, the Commission finds that complainant filed a formal complaint on October 25, 2003, but that he received no EEO counseling prior to doing so. The record shows that on May 9, 2003, the agency responded to complainant's May 5, 2003 letter, advising him of the EEO process and the EEO office telephone number. However, the record shows that complainant did not contact the EEO office again until September 9, 2003, approximately 4 months after the EEO office's May 9, 2003 letter. The Commission finds that complainant has filed a complaint that has not been brought to the attention of an EEO Counselor with the necessary intent to commence the EEO process . Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 July 14, 2004 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.1061902865767479, 0.14273318648338318, 0.05978439375758171, 0.0273413248360157, 0.04335959255695343, 0.028639361262321472, 0.007586812600493431, 0.08133921027183533, 0.005355771165341139, 0.05422980710864067, 0.025181969627738, -0.029429947957396507, -0.029651213437318802, -0.0155493514...
71	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a44553.txt	01a44553.txt	TXT	text/plain	9,185	Beth M. Norden v. Smithsonian Institution 01A44553 February 2, 2005 . Beth M. Norden, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.	February 2, 2005	Appeal Number: 01A44553 Legal Analysis: the Commission determined that the agency's final decision contained an unsupported statement that it posted relevant information describing the time limit for contacting an EEO Counselor. The Commission found that it could not determine the timeless of complainant's EEO contact without evidence of whether the agency placed posters in a particular worksite or that complainant was otherwise informed of the EEO process and the applicable time limits. The Commission vacated the agency dismissal and remanded the complaint. The Commission ordered the agency to conduct a supplemental investigation with respect to whether the complainant had constructive or actual notice of the time limits for contacting an EEO Counselor. Norden v. Smithsonian Institution, EEOC Request No. 01A41096 (March 31, 2004). On May 24, 2004, the agency issued the instant final decision. The agency again dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. The agency found that complainant was fully aware of the EEO time limits because she previously participated in the EEO process in 1998, when she filed a sexual harassment complaint against the agency. The agency further found that EEO posters addressing the time limitation period were conspicuously displayed throughout the building that complainant worked. In support of this argument, the agency submits a recent EEO poster (addressing the forty-five-day limitation period) as an example of the type of posters that had been on display. The agency also provided affidavits issued by various agency employees attesting that EEO posters were prominently displayed in various well traveled locations available to complainant, including the elevators in complainant's building; the main floor located at the entrance of the staff cafeteria; all department bulletin boards; the third floor where all meeting and gatherings are held; and on the six floor outside the Office of the Associate Director for Research and Collections. The agency also provided copies of the agency's internal website, which was available to all employees and contained EEO information with the applicable time limit for initiating EEO contact. On appeal, complainant, through her attorney, contends that the agency's pattern of not providing reasonable accommodation makes her initial EEO Counselor timely because her claim is part of a continuing violation. Complainant also contends that EEO posters were not posted in areas normally used by complainant. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988) ). 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 that it otherwise notified complainant of her rights. Here, the agency has presented sufficient evidence showing that complainant had constructive notice of the time limit for contacting an EEO Counselor. The record contains an affidavit from a named Management Support Specialist, Zoology Department, who stated that an EEO Poster was placed in the hallway outside her office, which complainant visited on various occasions prior to 2002. The record also contains an affidavit from a Program Analyst, Operations Office, attesting that an EEO poster was posted on all department bulletin boards. The record contains a copy of the agency's EEO poster which notifies employees of their EEO Rights and Responsibilities and informs them that they must contact the EEO Office within forty-five calendar days of the date of the alleged discriminatory act or the effective date of a personnel action. The record therefore supports a determination that EEO posters were displayed in prominent locations available to complainant, and her failure to review the posters does not justify an extension of the time limit. Final Decision: Accordingly, the agency's decision dismissing complainant's complaint is AFFIRMED.	Beth M. Norden v. Smithsonian Institution 01A44553 February 2, 2005 . Beth M. Norden, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency. Appeal No. 01A44553 Agency No. 03-20-082603 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated May 24, 2004, dismissing her 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. On April 7, 2003, complainant initiated contact with an EEO Counselor. On August 26, 2003, complainant filed a formal complaint, claiming that she was the victim of unlawful employment discrimination on the bases of sex and disability. In a final decision dated November 4, 2003, the agency determined that the instant complaint was comprised of two claims, identified in the following fashion: 1. On or about June 22, 2002, while complainant was requesting a reasonable accommodation, she was subjected to a comment that she was probably going through menopause and was probably more emotional than she otherwise should be; and 2. On November 30,. 2002, her light duty status was terminated. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. On appeal, the Commission determined that the agency's final decision contained an unsupported statement that it posted relevant information describing the time limit for contacting an EEO Counselor. The Commission found that it could not determine the timeless of complainant's EEO contact without evidence of whether the agency placed posters in a particular worksite or that complainant was otherwise informed of the EEO process and the applicable time limits. The Commission vacated the agency dismissal and remanded the complaint. The Commission ordered the agency to conduct a supplemental investigation with respect to whether the complainant had constructive or actual notice of the time limits for contacting an EEO Counselor. Norden v. Smithsonian Institution, EEOC Request No. 01A41096 (March 31, 2004). On May 24, 2004, the agency issued the instant final decision. The agency again dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. The agency found that complainant was fully aware of the EEO time limits because she previously participated in the EEO process in 1998, when she filed a sexual harassment complaint against the agency. The agency further found that EEO posters addressing the time limitation period were conspicuously displayed throughout the building that complainant worked. In support of this argument, the agency submits a recent EEO poster (addressing the forty-five-day limitation period) as an example of the type of posters that had been on display. The agency also provided affidavits issued by various agency employees attesting that EEO posters were prominently displayed in various well traveled locations available to complainant, including the elevators in complainant's building; the main floor located at the entrance of the staff cafeteria; all department bulletin boards; the third floor where all meeting and gatherings are held; and on the six floor outside the Office of the Associate Director for Research and Collections. The agency also provided copies of the agency's internal website, which was available to all employees and contained EEO information with the applicable time limit for initiating EEO contact. On appeal, complainant, through her attorney, contends that the agency's pattern of not providing reasonable accommodation makes her initial EEO Counselor timely because her claim is part of a continuing violation. Complainant also contends that EEO posters were not posted in areas normally used by complainant. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988) ). 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 that it otherwise notified complainant of her rights. Here, the agency has presented sufficient evidence showing that complainant had constructive notice of the time limit for contacting an EEO Counselor. The record contains an affidavit from a named Management Support Specialist, Zoology Department, who stated that an EEO Poster was placed in the hallway outside her office, which complainant visited on various occasions prior to 2002. The record also contains an affidavit from a Program Analyst, Operations Office, attesting that an EEO poster was posted on all department bulletin boards. The record contains a copy of the agency's EEO poster which notifies employees of their EEO Rights and Responsibilities and informs them that they must contact the EEO Office within forty-five calendar days of the date of the alleged discriminatory act or the effective date of a personnel action. The record therefore supports a determination that EEO posters were displayed in prominent locations available to complainant, and her failure to review the posters does not justify an extension of the time limit. Accordingly, the agency's decision dismissing complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 February 2, 2005 __________________ Date	[ "Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "861 F.2d 746", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 791", "29 U.S.C. §§ 791" ]	[ -0.04509763792157173, 0.0731898695230484, -0.013758620247244835, 0.07578236609697342, 0.036693789064884186, 0.07872545719146729, -0.009819081984460354, -0.023793471977114677, -0.006480013485997915, 0.04976094141602516, -0.028554873540997505, -0.012343370355665684, -0.019665608182549477, -0...
72	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001780.pdf	2023001780.pdf	PDF	application/pdf	9,339	Tasia C .,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.	January 6, 2023	Appeal Number: 2023001780 Background: During the period at issue, Complainant worked as a Hearings Customer Service Specialist, GS - 09 at the Agency’s facility in Miami, Florida. On November 15, 2022, Complainant filed a formal EEO complaint . Complainant claimed that the Agency subjected her to discrimination based on race, national origin, sex, color, disability, genetic information, and in reprisal for prior protected EEO activity when: 1. Complainant was not selected for the position of Hearing Operations Management Specialist (HOMS) on May 11, 2022. 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 2023001780 In its January 6, 2023 final decision , the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant became aware of the employment action on May 11, 2022, but she did not make EEO Counselor contact until August 25, 2022. The Agency determined that Complainant initiated EEO Counselor contact beyond the 45- day limitation period. The instant appeal followed. On appeal, Complainant states that her initial EEO Counselor contact was prior to August 2022, and was therefore timely. Specifically, Complainant argues that she made EEO Counselor contact on June 24, 2022, and that an email from an EEO Counselor memorializes the meeting. Legal Analysis: the Commission’s website. 2 2023001780 In its January 6, 2023 final decision , the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant became aware of the employment action on May 11, 2022, but she did not make EEO Counselor contact until August 25, 2022. The Agency determined that Complainant initiated EEO Counselor contact beyond the 45- day limitation period. The instant appeal followed. On appeal, Complainant states that her initial EEO Counselor contact was prior to August 2022, and was therefore timely. Specifically, Complainant argues that she made EEO Counselor contact on June 24, 2022, and that an email from an EEO Counselor memorializes the meeting. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106( a)(1) requires that an aggrieved individual must initiate contact with a n EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the ef fective date of the action. As noted above , the Agency determined that Complainant’s initial EEO Counselor contact on August 25, 2022, was untimely. The date of alleged discrimination was May 11, 2022, was beyond the 45- day time limit in which Complainant had to make EEO Co unselor contact. On appeal, Complainant alleges that she made EEO Counselor contact on June 24, 2022, within the 45- day time limit. Specifically, Complainant makes reference to an email from an EEO Counselor confirming they met and spoke on June 24, 2022. Complainant does not , however, state that when she met with the EEO Counselor, she intended to begin the EEO process. Additionally, the email also stated that, “[s]hould [Complainant] decide to request EEO Counseling, the below informa tion includes a link to the eFile application .” The email also explains the process for starting the EEO process, as well as the need to do so within the 45- day window. We have consistently stated that EEO contact is not timely unless there is intent to initiate the EEO process through the contact. The email from the EEO C ounselor clearly reflects that in June 2022, Complainant had not initiated the process, and the email was meant to give her direction on how to do so if she chose to do so. The record does not support an inference that Complainant contacted an EEO Counselor , on June 24, 2022, with the intent to initiate the EEO process. We therefore find that Complainant’s initial EEO Counselor contact in August 2022 was untimely.	Tasia C .,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2023001780 Agency No. ATL-22-0635 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 6, 2023, dismissing a formal complaint of unlawful employment discrimination in vi olation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as a Hearings Customer Service Specialist, GS - 09 at the Agency’s facility in Miami, Florida. On November 15, 2022, Complainant filed a formal EEO complaint . Complainant claimed that the Agency subjected her to discrimination based on race, national origin, sex, color, disability, genetic information, and in reprisal for prior protected EEO activity when: 1. Complainant was not selected for the position of Hearing Operations Management Specialist (HOMS) on May 11, 2022. 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 2023001780 In its January 6, 2023 final decision , the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant became aware of the employment action on May 11, 2022, but she did not make EEO Counselor contact until August 25, 2022. The Agency determined that Complainant initiated EEO Counselor contact beyond the 45- day limitation period. The instant appeal followed. On appeal, Complainant states that her initial EEO Counselor contact was prior to August 2022, and was therefore timely. Specifically, Complainant argues that she made EEO Counselor contact on June 24, 2022, and that an email from an EEO Counselor memorializes the meeting. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106( a)(1) requires that an aggrieved individual must initiate contact with a n EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the ef fective date of the action. As noted above , the Agency determined that Complainant’s initial EEO Counselor contact on August 25, 2022, was untimely. The date of alleged discrimination was May 11, 2022, was beyond the 45- day time limit in which Complainant had to make EEO Co unselor contact. On appeal, Complainant alleges that she made EEO Counselor contact on June 24, 2022, within the 45- day time limit. Specifically, Complainant makes reference to an email from an EEO Counselor confirming they met and spoke on June 24, 2022. Complainant does not , however, state that when she met with the EEO Counselor, she intended to begin the EEO process. Additionally, the email also stated that, “[s]hould [Complainant] decide to request EEO Counseling, the below informa tion includes a link to the eFile application .” The email also explains the process for starting the EEO process, as well as the need to do so within the 45- day window. We have consistently stated that EEO contact is not timely unless there is intent to initiate the EEO process through the contact. The email from the EEO C ounselor clearly reflects that in June 2022, Complainant had not initiated the process, and the email was meant to give her direction on how to do so if she chose to do so. The record does not support an inference that Complainant contacted an EEO Counselor , on June 24, 2022, with the intent to initiate the EEO process. We therefore find that Complainant’s initial EEO Counselor contact in August 2022 was untimely. CONCLUSION The Agen cy's final decision dismissing the formal complaint for untimely EEO Counselor contact is AFFIRMED . 3 2023001780 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty (20) calendar days from receipt of another party’s request for reconsideration within 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 M D-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunit y Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 4 2023001780 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 name as the defendant in the complaint the perso n 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 w ant 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 t hese 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 May 16, 2023 Date	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.106", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 791", "29 U.S.C. § 621", "42 U.S.C. § 2000ff" ]	[ -0.11919496953487396, 0.06493949145078659, -0.08478199690580368, 0.0707264244556427, -0.012328628450632095, 0.09243497252464294, 0.021769512444734573, -0.04815562441945076, -0.02655506320297718, 0.005256989970803261, 0.03333917260169983, 0.026794547215104103, -0.015869835391640663, -0.0083...
73	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520170376.txt	0520170376.txt	TXT	text/plain	9,187	Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.	April 25, 2017	Appeal Number: 0120170901 Legal Analysis: EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In the previous decision, the Commission affirmed the Agency's final decision dismissing Complainant's formal EEO complaint under the doctrine of laches. We noted that, in an "Information Inquiry Summary" form that Complainant and the EEO Officer signed on May 17, 2013, Complainant stated that the Agency extended the term appointment of other employees but did not extend her term appointment. The EEO Officer wrote on the form that Complainant "has another job offer and wants to decide later if she will file a complaint." The form, which listed May 17, 2013, as the date of initial contact, advised Complainant of the 45-day time limit for initiating the EEO complaint process. On June 24, 2013, the EEO Officer gave Complainant a Memorandum on "Aggrieved Person's Rights and Responsibilities" that explained the EEO process. In an October 24, 2013, e-mail to Complainant, an EEO Administrative Technician confirmed that Complainant's mediation was scheduled for October 30, 2013. Complainant asserted that she had a scheduling conflict and was told that the mediation would be rescheduled. She also asserted that she contacted the EEO Officer "several weeks later" and "was told they were working on her complaint." Complainant sent the EEO Officer a December 18, 2015, e-mail updating her work contact information, which identified her as an EEO Specialist, Affirmative Employment Program Manager. According to Complainant, she sent a June 16, 2016, e-mail to the EEO Complaints Manager asking about the status of her complaint processing but received no response. On August 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to harassment based on race, sex, and reprisal for prior EEO activity when, among other things, the Agency issued her a May 16, 2013, letter informing her that it would not renew her term of employment and that her employment would end effective May 21, 2013. The Agency informed Complainant that its records did not indicate that she had contacted an EEO official to file an EEO complaint and asked her to provide documentation of her contacts. Complainant's attorney submitted documentation, and the Agency replied that the documentation did not show that Complainant met with an EEO Counselor to have her EEO complaint counseled. The Agency subsequently dismissed the complaint under the doctrine of laches. The Agency concluded that Complainant did not exercise due diligence in pursuing her complaint and allowed it to languish. We found that Complainant's May 2013 contact with the Agency's EEO Office did not trigger the Agency's obligation to issue a notice of a right to file a complaint. In addition, noting that Complainant was an EEO Specialist when she contacted the Agency's EEO Officer in December 2015, we found that she more likely than not was familiar with the EEO process. We concluded that laches applied because "culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint."	Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Request No. 0520170376 Appeal No. 0120170901 Agency No. ARGORDON13MAY04525 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120170901 (April 25, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In the previous decision, the Commission affirmed the Agency's final decision dismissing Complainant's formal EEO complaint under the doctrine of laches. We noted that, in an "Information Inquiry Summary" form that Complainant and the EEO Officer signed on May 17, 2013, Complainant stated that the Agency extended the term appointment of other employees but did not extend her term appointment. The EEO Officer wrote on the form that Complainant "has another job offer and wants to decide later if she will file a complaint." The form, which listed May 17, 2013, as the date of initial contact, advised Complainant of the 45-day time limit for initiating the EEO complaint process. On June 24, 2013, the EEO Officer gave Complainant a Memorandum on "Aggrieved Person's Rights and Responsibilities" that explained the EEO process. In an October 24, 2013, e-mail to Complainant, an EEO Administrative Technician confirmed that Complainant's mediation was scheduled for October 30, 2013. Complainant asserted that she had a scheduling conflict and was told that the mediation would be rescheduled. She also asserted that she contacted the EEO Officer "several weeks later" and "was told they were working on her complaint." Complainant sent the EEO Officer a December 18, 2015, e-mail updating her work contact information, which identified her as an EEO Specialist, Affirmative Employment Program Manager. According to Complainant, she sent a June 16, 2016, e-mail to the EEO Complaints Manager asking about the status of her complaint processing but received no response. On August 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to harassment based on race, sex, and reprisal for prior EEO activity when, among other things, the Agency issued her a May 16, 2013, letter informing her that it would not renew her term of employment and that her employment would end effective May 21, 2013. The Agency informed Complainant that its records did not indicate that she had contacted an EEO official to file an EEO complaint and asked her to provide documentation of her contacts. Complainant's attorney submitted documentation, and the Agency replied that the documentation did not show that Complainant met with an EEO Counselor to have her EEO complaint counseled. The Agency subsequently dismissed the complaint under the doctrine of laches. The Agency concluded that Complainant did not exercise due diligence in pursuing her complaint and allowed it to languish. We found that Complainant's May 2013 contact with the Agency's EEO Office did not trigger the Agency's obligation to issue a notice of a right to file a complaint. In addition, noting that Complainant was an EEO Specialist when she contacted the Agency's EEO Officer in December 2015, we found that she more likely than not was familiar with the EEO process. We concluded that laches applied because "culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint." Accordingly, we affirmed the dismissal of the complaint. In her request for reconsideration, Complainant, through her attorney, argues that the previous decision involved erroneous interpretations of fact and law. She asserts that the previous decision "is predicated upon a factual finding that Complainant did not initiate EEO counseling in May 2013." She contends that she fulfilled her obligation by requesting counseling within 45 days of the alleged discrimination and that the Agency failed to process her complaint properly. Complainant further contends that laches should not apply because the Agency led her to believe that it was processing her request for EEO counseling when it scheduled mediation in October 2013. According to Complainant, "the representative scheduling the mediation told her that they would get back to her to reschedule and there was no subsequent contac[t]." Finally, she argues that the Agency is more responsible for the alleged mishandling of her complaint than she is and that "a balancing of equities requires that Complainant should not be precluded from processing her complaint." In response, the Agency argues that the previous decision did not involve an erroneous interpretation of material fact and that the Commission correctly applied laches to this case. The Agency contends that Complainant did not pursue her complaint with due diligence. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. The "Information Inquiry Summary" form that Complainant signed on May 17, 2013, expressly stated that Complainant "wants to decide later if she will file a complaint." Further, even assuming that Complainant's May 2013 contact with the EEO Office constituted the initiation of EEO counseling, we find that the Commission correctly applied laches. There was a two-year gap between the cancellation of the scheduled mediation and Complainant's December 2015 e-mail, which simply updated her contact information, and at least an additional six months before Complainant again contacted the Agency's EEO Office. As we stated in the previous decision, the equities in this case weigh against Complainant. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120170901 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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 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. 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 __9/14/17________________ Date ------------------------------------------------------------ ------------------------------------------------------------	[ "Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007)", "29 C.F.R. § 1614.405(c)" ]	[ -0.0758088082075119, 0.05353747308254242, 0.03697158396244049, -0.0020999307744205, 0.03520044684410095, 0.013883478939533234, 0.033984310925006866, 0.04197121784090996, -0.04750914126634598, 0.06210513412952423, 0.027143899351358414, 0.004737805109471083, -0.025938086211681366, -0.0323391...
74	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a03652.txt	01a03652.txt	TXT	text/plain	10,717	Bobby G. Davis v. Department of the Army 01A03652 July 20, 2000 . Bobby G. Davis, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.	July 20, 2000	Appeal Number: 01A03652 Complaint Allegations: In his complaint, complainant alleged that the agency discriminated against him on the bases of age, disability, and reprisal when from 1982 through 1994, he was subjected to harassment and denied many promotions/transfers, culminating in his constructive discharge in October 1994. Complainant further claimed that he raised these matters with EEO counselors in 1993 and 1994, but that they refused to allow him to initiate the EEO process. Case Facts: Complainant filed a timely appeal with this Commission from an agency's decision dismissing his complaint of unlawful employment discrimination brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.; and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405). Prior to filing the instant complaint, complainant contacted the EEO office on May 11, 1998. However, EEO counseling was unsuccessful, and complainant filed a formal complaint on August 6, 1998. In his complaint, complainant alleged that the agency discriminated against him on the bases of age, disability, and reprisal when from 1982 through 1994, he was subjected to harassment and denied many promotions/transfers, culminating in his constructive discharge in October 1994. Complainant further claimed that he raised these matters with EEO counselors in 1993 and 1994, but that they refused to allow him to initiate the EEO process. The agency dismissed the complaint in a final decision dated August 17, 1998, for untimely EEO Counselor contact, using the May 11, 1998, date as the initial contact date. Complainant appealed this determination to the Commission. The Commission remanded the case to the agency to obtain affidavits from the EEO Counselors identified by complainant as those he contacted in 1993 and 1994, in order to ascertain whether this contact occurred as alleged by complainant. Davis v. Department of the Army, EEOC Appeal No. 01986551 (September 3, 1999). The agency completed the action ordered by the Commission, and issued its decision on March 13, 2000. The agency found that the affidavit testimony confirmed that although complainant spoke with an EEO official and two EEO Counselors, as well as other management officials, he failed to indicate a desire to pursue the EEO process. Accordingly, the agency again dismissed the complaint for untimely EEO Counselor contact. On appeal, complainant argues that a copy of his letter to an EEO management official, dated June 16, 1994, as well as copies of correspondence to his Senator, during the pertinent time, prove that he established timely EEO Counselor contact. Complainant additionally repeats that the EEO official and Counselors refused to engage in the EEO process with him, and would not permit him to proceed. The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as Legal Analysis: the Commission. The Commission remanded the case to the agency to obtain affidavits from the EEO Counselors identified by complainant as those he contacted in 1993 and 1994, in order to ascertain whether this contact occurred as alleged by complainant. Davis v. Department of the Army, EEOC Appeal No. 01986551 (September 3, 1999). The agency completed the action ordered by the Commission, and issued its decision on March 13, 2000. The agency found that the affidavit testimony confirmed that although complainant spoke with an EEO official and two EEO Counselors, as well as other management officials, he failed to indicate a desire to pursue the EEO process.	Bobby G. Davis v. Department of the Army 01A03652 July 20, 2000 . Bobby G. Davis, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency. Appeal No. 01A03652 Agency No. BKHBFO-98-0710230 DECISION Complainant filed a timely appeal with this Commission from an agency's decision dismissing his complaint of unlawful employment discrimination brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.; and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405). Prior to filing the instant complaint, complainant contacted the EEO office on May 11, 1998. However, EEO counseling was unsuccessful, and complainant filed a formal complaint on August 6, 1998. In his complaint, complainant alleged that the agency discriminated against him on the bases of age, disability, and reprisal when from 1982 through 1994, he was subjected to harassment and denied many promotions/transfers, culminating in his constructive discharge in October 1994. Complainant further claimed that he raised these matters with EEO counselors in 1993 and 1994, but that they refused to allow him to initiate the EEO process. The agency dismissed the complaint in a final decision dated August 17, 1998, for untimely EEO Counselor contact, using the May 11, 1998, date as the initial contact date. Complainant appealed this determination to the Commission. The Commission remanded the case to the agency to obtain affidavits from the EEO Counselors identified by complainant as those he contacted in 1993 and 1994, in order to ascertain whether this contact occurred as alleged by complainant. Davis v. Department of the Army, EEOC Appeal No. 01986551 (September 3, 1999). The agency completed the action ordered by the Commission, and issued its decision on March 13, 2000. The agency found that the affidavit testimony confirmed that although complainant spoke with an EEO official and two EEO Counselors, as well as other management officials, he failed to indicate a desire to pursue the EEO process. Accordingly, the agency again dismissed the complaint for untimely EEO Counselor contact. On appeal, complainant argues that a copy of his letter to an EEO management official, dated June 16, 1994, as well as copies of correspondence to his Senator, during the pertinent time, prove that he established timely EEO Counselor contact. Complainant additionally repeats that the EEO official and Counselors refused to engage in the EEO process with him, and would not permit him to proceed. The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as 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. Here, we find that the affidavit testimony of the identified EEO official and Counselors confirms the contacts alleged by complainant. However, this testimony consistently reflects that although complainant expressed his dissatisfaction at being denied a transfer, he failed to further pursue the EEO process despite being informed of the procedure for doing so, and that he never communicate a desire to file an EEO complaint. Each party who prepared an affidavit had the impression that complainant was, in essence, venting his frustrations in contacts with them, but nothing more. Furthermore, although his June 16, 1994, letter to the EEO official confirms a telephone conversation between the two, and reflects complainant's belief that he may have been discriminated against, we find that it does not communicate a desire to pursue the EEO process or file an EEO complaint. The Commission has held that EEO Counselor contact for purposes of tolling the time limit requires at a minimum that a complainant intend to pursue EEO counseling when the complainant initiates EEO contact. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990); Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (March 4, 1994). In this case, the Commission determines that the affidavit testimony consistently reveals that although complainant made contact numerous times, he did not do so with the requisite intent to pursue his concerns any further in the EEO process. According to the affidavit testimony, complainant was informed several times of the need to complete certain paperwork to formally initiate the EEO process, but he never asked to do so. Therefore, for the reasons stated herein, we find that the agency properly DISMISSED the instant complainant for untimely EEO contact, and we AFFIRM the agency's decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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). COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: July 20, 2000 ____________________________ Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _______________ __________________________ Date 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov.	[ "Davis v. Department of the Army, EEOC Appeal No. 01986551 (September 3, 1999)", "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990)", "Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (Ma...	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75	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120063872.txt	0120063872.txt	TXT	text/plain	10,383	Elizabeth M. Prial, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.	June 5, 2006	Appeal Number: 01200638721 Legal Analysis: the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). Here, we find that the two memorandums dated January 25, 2002 and February 14, 2005 to be persuasive evidence that complainant had constructive knowledge of the 45 day time limit to seek EEO counseling. One memo was issued during the time of the alleged sexual harassment. Moreover, complainant's writings indicate she was aware of the EEO process and delayed seeking EEO counseling because she feared reprisal and not being believed on the exposure episode. Final Decision: Accordingly, the FAD is affirmed.	Elizabeth M. Prial, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency. Appeal No. 01200638721 Agency No. F-06-6118 DECISION Complainant filed a timely appeal with this Commission from a final agency decision (FAD) dated June 5, 2006, 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. In her complaint, complainant alleged that she was sexually harassed when from April 2004 to September 2005 when a manager made harassing phone calls to her at home and work, engaged in inappropriate touching, made overtly lewd comments and gestures, and exposed himself to her. Complainant initiated contact with an EEO counselor on November 28, 2005. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). Under 29 C.F.R. § 1614.105(a)(2), an agency shall extend the 45 day time limit to initiate EEO counseling where an individual shows that she was not notified of the time limit and was not otherwise aware of it. The counselor's report indicates that when complainant was advised by the counselor that her claim might be untimely, complainant explained that she delayed because she feared retaliation and had no proof other than her word concerning the exposure incident. Thereafter, in March 2006, complainant sent correspondence to the EEO office detailing the alleged harassment in chronological order and actions she took in response. In a paragraph placed between February 2005 and March 2005 incidents, complainant wrote that she was concerned her career would be negatively affected if she filed an EEO complaint, thus necessitating her silence and no action being taken. In specifically addressing in this correspondence the reasons she did not contact an EEO counselor sooner, she wrote reasons consistent with those in the counselor's report. Thereafter, complainant submitted correspondence through her attorney dated April 27, 2006, responding to a request by the EEO office to address the issue of whether she timely initiated EEO counseling. The correspondence included an affidavit by complainant. Complainant, who started working for the agency's Federal Bureau of Investigation (FBI) in 1997, stated that she was unaware of the 45 day time limit to seek EEO counseling. She stated that she was stationed in New York to 2003, and did not recall seeing an EEO poster with rights. Thereafter, she was posted at two covert locations in the Washington, D.C. metropolitan area, and stated she did not see an EEO poster with rights. She stated that from April 2004 to her resignation on October 1, 2005, she never received notice, written or oral, of the 45 day time limit to seek EEO counseling. She stated she first learned of the 45 day time limit to seek EEO counseling from her lawyer on November 28, 2005, and initiated counseling contact that day. The FAD dismissed the complaint for failure to timely contact an EEO counselor. It recited complainant's writings indicating that she was aware of the EEO process, but chose not to contact an EEO counselor because she feared reprisal and was not sure she would be believed. It found that complainant was notified of the 45 day time limit to seek EEO counseling through the agency's intranet site of the FBI's Office of Equal Employment Opportunity Affairs. On appeal, complainant reiterates her argument that she was unaware of the time limit to seek EEO counseling and did not have constructive notice thereof. In response to complainant's appeal, the agency argues complainant had constructive notice of the 45 day time limit, and it is not credible she was unaware of the time limit. It states that all new employees are given a handbook that discusses the 45 day time limit to seek EEO counseling, and it is available on FBI's intranet website. It does not provide a copy of the relevant part of the handbook. More significantly, the agency argues that it periodically provides a "Memorandum to All Employees" which is printed off and given to all FBI employees that regards it policy on sexual harassment and recites the 45 day time limit to seek EEO counseling on claims of sexual harassment. The agency submits the memos, dated January 25, 2002 and February 14, 2005, which define sexual harassment and recite the 45 day time limit to seek EEO counseling on it. The memorandums are by the Director of the FBI, and the later one is signed by him. Complainant does not respond to the agency's information on the memorandums. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991). 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 that it otherwise notified complainant of her rights. Examples of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the complainant worked and identifying the periods of posting accompanied by a copy of the poster; documentation that the complainant took EEO training where the 45 calendar day time limit was covered, etc.). Here, we find that the two memorandums dated January 25, 2002 and February 14, 2005 to be persuasive evidence that complainant had constructive knowledge of the 45 day time limit to seek EEO counseling. One memo was issued during the time of the alleged sexual harassment. Moreover, complainant's writings indicate she was aware of the EEO process and delayed seeking EEO counseling because she feared reprisal and not being believed on the exposure episode. Accordingly, the FAD is affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 2, 2006 __________________ Date 1 The Commission's June 20, 2006 letters to the parties acknowledging the appeal identified it as docket number 01A63872. Due to changes in our computerized records tracking system, the appeal docket number has been restyled to 0120063872. ?? ?? ?? ?? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036	[ "Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.06351288408041, 0.07069671899080276, -0.00014128848852124065, 0.054792121052742004, 0.014363771304488182, 0.019500093534588814, 0.050734736025333405, 0.00026591718778945506, 0.009941049851477146, 0.010807571932673454, 0.02750268392264843, 0.02139320783317089, -0.02989119291305542, -0.02...
76	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120180927.pdf	0120180927.pdf	PDF	application/pdf	14,128	Ross H.,1 Complainant, v. W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency.	January 19, 2018	Appeal Number: 0120180927 Background: During the relevant time, Complainant worked as a n Attorney at the Agency’s Office of Chief Counsel in Washington, D.C. Complainant asserts that over more than thirty years with the Agency, he has participated in EEO activity for two decades . This participation included serving as union president and r epresenting employees in EEO cases. In 2013, Complainant, in his capacity as union president, represented an employee (hereinafter “Employee A”) in an arbitration hearing. Another employee (hereinafter “Employee B”) testified for the Agency, which ultimately prevailed. 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 0120180927 A few weeks later, the union sent a newsletter ,2 via mass email, to its membership. Included in the newsletter was an article condemning Employee B, identifying her office location and calling on members to ostracize her. In re sponse, the Agency filed a grievance against the union alleging that the newsletter was part of an effort to harass witnesses . 3 As part of its brief, the Agency included a copy of the newsletter. Complainant argued to the arbitrator (hereinafter “Arbitra tor C”) that the newsletter was inappropriately obtained from an EEO file. According to Complainant, in September 2013, the EEO representative in another EEO case emailed the newsletter to the EEO Director and the opposing Agency counsel. Complainant arg ues that Agency counsel inappropriately shared the email and newsletter with another “Agency management attorney” who was not involved with the EEO case. This attorney, during the May 2014 grievance, submitted the newsletter to Arbitrator C. While the g rievance was pending before Arbitrator C, Complainant also filed the instant formal EEO complaint. In his July 25, 2014 complaint, Complainant claimed that he was subjected to reprisal, on May 5, 2014, when the Agency: disclosed private and confidential records from EEO proceeding including documents opposing discrimination; making threats against me and others; issuing warnings; engaging in harassment; taking steps and actions against me and others to restrict, limit, thwart, deter and terminate that EE O activity of me and others; demanding that I cease EEO activity including publicity; denouncing my EEO activity as reprehensible; demanding that I and other pay for engaging in EEO activity; threatening damage to reputation. On July 29, 2014, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. The Agency reasoned that the incident was not sufficiently severe to render Complainant an aggrieved employee. Further, the Agency found that the formal complaint to be a collateral attack on the grievance/ arbitration process. Complainant appealed the dismissal to the Commission. In the prior decision, the Commission found that a fair reading of the formal complaint, along with the EEO Counselor’s Report, reflected that Complainant was alleging that “an employee of the Agency’s Office of General Counsel transmitted a confidential document from the EEO complaint file of another employee, to an outside arbitrator in order to discredit Complainant, as union president, i n an arbitration filed against the union.” 2 “IUPEDJ News” (Independent Union of Pension Employees for Democracy and Justice) 3 According to the Agency, Arbitrator C found that the newsletter was a clear attempt at witness intimidation in violation of the Collective Bargaining agreement and federal law. 3 0120180927 See EEOC Appeal No. 0120143006 (Jan. 15, 2015). Noting the lower threshold requirement for viable claims of retaliation, the Commission concluded that the alleged Agency actions were sufficient to create a “chil ling effect” on the pursuit of the EEO process by Complainant or others. See id . The complaint was remanded to the Agency for further processing. See id . After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an E EOC Administrative Judge (AJ). Complainant timely requested a hearing , but subsequently withdrew the hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) , finding no discrimination . The Agency reasoned that Complainant failed to establish a prima facie case because the alleged incident did not constitute an adverse action. The Agency stated that the use of the newsletter in litigation before an arbitrator would not dissuade a reasonable person from using the EEO process. Moreover, the Agency found Complainant’s assertion, that the sole source of the newsletter was the EEO case file and that the document had not been publicly disclosed or circulated, “strains credulity .” According to the Agency, nothing in the newsletter indicated it was confidential or part of an EEO file. Further, the newsletter was posted on a bulletin board in the HR Department. The Agency also found that management prof fered legitimate, non -discriminatory reasons for using the newsletter: the newsletter was the subject of a grievance brought by the Agency against the union alleging that it was intimidating witnesses in a newsletter article. The Agency determined that Co mplainant failed to show this proffered reason was pretext. Complainant filed the instant appeal. On appeal, he reiterates his belief that the Agency inappropriately took a document from an EEO file and used it to pressure him to cease his EEO activity. Such actions, argues Complainant, is a per se violation of EEO laws. Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a n Attorney at the Agency’s Office of Chief Counsel in Washington, D.C. Complainant asserts that over more than thirty years with the Agency, he has participated in EEO activity for two decades . This participation included serving as union president and r epresenting employees in EEO cases. In 2013, Complainant, in his capacity as union president, represented an employee (hereinafter “Employee A”) in an arbitration hearing. Another employee (hereinafter “Employee B”) testified for the Agency, which ultimately prevailed. 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 0120180927 A few weeks later, the union sent a newsletter ,2 via mass email, to its membership. Included in the newsletter was an article condemning Employee B, identifying her office location and calling on members to ostracize her. In re sponse, the Agency filed a grievance against the union alleging that the newsletter was part of an effort to harass witnesses . 3 As part of its brief, the Agency included a copy of the newsletter. Complainant argued to the arbitrator (hereinafter “Arbitra tor C”) that the newsletter was inappropriately obtained from an EEO file. According to Complainant, in September 2013, the EEO representative in another EEO case emailed the newsletter to the EEO Director and the opposing Agency counsel. Complainant arg ues that Agency counsel inappropriately shared the email and newsletter with another “Agency management attorney” who was not involved with the EEO case. This attorney, during the May 2014 grievance, submitted the newsletter to Arbitrator C. While the g rievance was pending before Arbitrator C, Complainant also filed the instant formal EEO complaint. In his July 25, 2014 complaint, Complainant claimed that he was subjected to reprisal, on May 5, 2014, when the Agency: disclosed private and confidential records from EEO proceeding including documents opposing discrimination; making threats against me and others; issuing warnings; engaging in harassment; taking steps and actions against me and others to restrict, limit, thwart, deter and terminate that EE O activity of me and others; demanding that I cease EEO activity including publicity; denouncing my EEO activity as reprehensible; demanding that I and other pay for engaging in EEO activity; threatening damage to reputation. On July 29, 2014, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. The Agency reasoned that the incident was not sufficiently severe to render Complainant an aggrieved employee. Further, the Agency found that the formal complaint to be a collateral attack on the grievance/ arbitration process. Complainant appealed the dismissal to the Commission. In the prior decision, the Commission found that a fair reading of the formal complaint, along with the EEO Counselor’s Report, reflected that Complainant was alleging that “an employee of the Agency’s Office of General Counsel transmitted a confidential document from the EEO complaint file of another employee, to an outside arbitrator in order to discredit Complainant, as union president, i n an arbitration filed against the union.” 2 “IUPEDJ News” (Independent Union of Pension Employees for Democracy and Justice) 3 According to the Agency, Arbitrator C found that the newsletter was a clear attempt at witness intimidation in violation of the Collective Bargaining agreement and federal law. 3 0120180927 See EEOC Appeal No. 0120143006 (Jan. 15, 2015). Noting the lower threshold requirement for viable claims of retaliation, the Commission concluded that the alleged Agency actions were sufficient to create a “chil ling effect” on the pursuit of the EEO process by Complainant or others. See id . The complaint was remanded to the Agency for further processing. See id . After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an E EOC Administrative Judge (AJ). Complainant timely requested a hearing , but subsequently withdrew the hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) , finding no discrimination . The Agency reasoned that Complainant failed to establish a prima facie case because the alleged incident did not constitute an adverse action. The Agency stated that the use of the newsletter in litigation before an arbitrator would not dissuade a reasonable person from using the EEO process. Moreover, the Agency found Complainant’s assertion, that the sole source of the newsletter was the EEO case file and that the document had not been publicly disclosed or circulated, “strains credulity .” According to the Agency, nothing in the newsletter indicated it was confidential or part of an EEO file. Further, the newsletter was posted on a bulletin board in the HR Department. The Agency also found that management prof fered legitimate, non -discriminatory reasons for using the newsletter: the newsletter was the subject of a grievance brought by the Agency against the union alleging that it was intimidating witnesses in a newsletter article. The Agency determined that Co mplainant failed to show this proffered reason was pretext. Complainant filed the instant appeal. On appeal, he reiterates his belief that the Agency inappropriately took a document from an EEO file and used it to pressure him to cease his EEO activity. Such actions, argues Complainant, is a per se violation of EEO laws. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Oppor tunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpret ation of the law”). 4 0120180927 As noted above, in finding that Complainant had presented sufficient allegations to state viable claim of retaliation4 our previous decision observed that the Agency had purportedly disclosed confidential documents from an EEO file and used those documents to thwart and cease further EEO activity by Complainant. See EEOC Appeal No. 0120143006. The ordered investigation, however, revealed that the asserted “confidential” document was , in fact, a union newsletter that had been widely emailed to union membership and posted at the facility. Complainant argues vigorously that the newsletter was obtained by breaching the confidentiality of another employee’s EEO file . However, we are not persuaded. The nature of the document itself, a “newsletter ,” indicates a level of exposure and accessibility inconsistent with Complainant’s contentions. Further, Complainant himself acknowledges that the Agency “could have sought the newsletter somewhere other than taking it from the EEO file.” The investigation also shows that the Agency legitimately submitted the newsletter during the arbitration proceeding to support its efforts to protect Agency employees from being harassed and intimidated after they testify. The newsletter was not provided to Arbitrator C in reprisal for Complainant’s prior EEO activity. The document was legitimately used by the Agency in a proceeding against the union. Complainant has failed to meet his burden in establishing that he was subjected to unlawful retaliation for his prior protected EEO activity .	Ross H.,1 Complainant, v. W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 0120180927 Agency No. 14-030-F DECISION On January 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 21, 2017 final decision concerning an equal employment opportunity (EEO) complaint claim ing 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a n Attorney at the Agency’s Office of Chief Counsel in Washington, D.C. Complainant asserts that over more than thirty years with the Agency, he has participated in EEO activity for two decades . This participation included serving as union president and r epresenting employees in EEO cases. In 2013, Complainant, in his capacity as union president, represented an employee (hereinafter “Employee A”) in an arbitration hearing. Another employee (hereinafter “Employee B”) testified for the Agency, which ultimately prevailed. 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 0120180927 A few weeks later, the union sent a newsletter ,2 via mass email, to its membership. Included in the newsletter was an article condemning Employee B, identifying her office location and calling on members to ostracize her. In re sponse, the Agency filed a grievance against the union alleging that the newsletter was part of an effort to harass witnesses . 3 As part of its brief, the Agency included a copy of the newsletter. Complainant argued to the arbitrator (hereinafter “Arbitra tor C”) that the newsletter was inappropriately obtained from an EEO file. According to Complainant, in September 2013, the EEO representative in another EEO case emailed the newsletter to the EEO Director and the opposing Agency counsel. Complainant arg ues that Agency counsel inappropriately shared the email and newsletter with another “Agency management attorney” who was not involved with the EEO case. This attorney, during the May 2014 grievance, submitted the newsletter to Arbitrator C. While the g rievance was pending before Arbitrator C, Complainant also filed the instant formal EEO complaint. In his July 25, 2014 complaint, Complainant claimed that he was subjected to reprisal, on May 5, 2014, when the Agency: disclosed private and confidential records from EEO proceeding including documents opposing discrimination; making threats against me and others; issuing warnings; engaging in harassment; taking steps and actions against me and others to restrict, limit, thwart, deter and terminate that EE O activity of me and others; demanding that I cease EEO activity including publicity; denouncing my EEO activity as reprehensible; demanding that I and other pay for engaging in EEO activity; threatening damage to reputation. On July 29, 2014, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. The Agency reasoned that the incident was not sufficiently severe to render Complainant an aggrieved employee. Further, the Agency found that the formal complaint to be a collateral attack on the grievance/ arbitration process. Complainant appealed the dismissal to the Commission. In the prior decision, the Commission found that a fair reading of the formal complaint, along with the EEO Counselor’s Report, reflected that Complainant was alleging that “an employee of the Agency’s Office of General Counsel transmitted a confidential document from the EEO complaint file of another employee, to an outside arbitrator in order to discredit Complainant, as union president, i n an arbitration filed against the union.” 2 “IUPEDJ News” (Independent Union of Pension Employees for Democracy and Justice) 3 According to the Agency, Arbitrator C found that the newsletter was a clear attempt at witness intimidation in violation of the Collective Bargaining agreement and federal law. 3 0120180927 See EEOC Appeal No. 0120143006 (Jan. 15, 2015). Noting the lower threshold requirement for viable claims of retaliation, the Commission concluded that the alleged Agency actions were sufficient to create a “chil ling effect” on the pursuit of the EEO process by Complainant or others. See id . The complaint was remanded to the Agency for further processing. See id . After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an E EOC Administrative Judge (AJ). Complainant timely requested a hearing , but subsequently withdrew the hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) , finding no discrimination . The Agency reasoned that Complainant failed to establish a prima facie case because the alleged incident did not constitute an adverse action. The Agency stated that the use of the newsletter in litigation before an arbitrator would not dissuade a reasonable person from using the EEO process. Moreover, the Agency found Complainant’s assertion, that the sole source of the newsletter was the EEO case file and that the document had not been publicly disclosed or circulated, “strains credulity .” According to the Agency, nothing in the newsletter indicated it was confidential or part of an EEO file. Further, the newsletter was posted on a bulletin board in the HR Department. The Agency also found that management prof fered legitimate, non -discriminatory reasons for using the newsletter: the newsletter was the subject of a grievance brought by the Agency against the union alleging that it was intimidating witnesses in a newsletter article. The Agency determined that Co mplainant failed to show this proffered reason was pretext. Complainant filed the instant appeal. On appeal, he reiterates his belief that the Agency inappropriately took a document from an EEO file and used it to pressure him to cease his EEO activity. Such actions, argues Complainant, is a per se violation of EEO laws. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Oppor tunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpret ation of the law”). 4 0120180927 As noted above, in finding that Complainant had presented sufficient allegations to state viable claim of retaliation4 our previous decision observed that the Agency had purportedly disclosed confidential documents from an EEO file and used those documents to thwart and cease further EEO activity by Complainant. See EEOC Appeal No. 0120143006. The ordered investigation, however, revealed that the asserted “confidential” document was , in fact, a union newsletter that had been widely emailed to union membership and posted at the facility. Complainant argues vigorously that the newsletter was obtained by breaching the confidentiality of another employee’s EEO file . However, we are not persuaded. The nature of the document itself, a “newsletter ,” indicates a level of exposure and accessibility inconsistent with Complainant’s contentions. Further, Complainant himself acknowledges that the Agency “could have sought the newsletter somewhere other than taking it from the EEO file.” The investigation also shows that the Agency legitimately submitted the newsletter during the arbitration proceeding to support its efforts to protect Agency employees from being harassed and intimidated after they testify. The newsletter was not provided to Arbitrator C in reprisal for Complainant’s prior EEO activity. The document was legitimately used by the Agency in a proceeding against the union. Complainant has failed to meet his burden in establishing that he was subjected to unlawful retaliation for his prior protected EEO activity . CONCLUSION The Agency’s final decision finding no discrimination was proper and 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 appe llate decision will have a substantial impact on the policies, practices, or operations of the Agency. 4 Citing Burlington Norther & Santa Fe Railroad Co. v. White , 548 U.S. 53, 126 S. Ct. 2405 (2006), Complainant must allege: (1) he was subjected to an action which a reasonable employee would have found materially adverse; and, (2) such action could dissuade a reasonable person from using the EEO process. 5 0120180927 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 Manag ement 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 suppor ting 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 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 act ion, 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 cour t 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. 6 0120180927 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 21, 2019 Date	[ "548 U.S. 53", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.09054320305585861, 0.07358939200639725, 0.004282466135919094, -0.0011450400343164802, 0.014514544978737831, 0.04820011556148529, 0.06131134182214737, -0.02409263327717781, -0.011547980830073357, 0.005119963549077511, -0.0015040036523714662, -0.021191000938415527, -0.004963296931236982, ...
77	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000392.pdf	2019000392.pdf	PDF	application/pdf	12,169	Catherina B. ,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.	September 27, 2018	Appeal Number: 2019000392 Background: Complainant w as employed by the Agency as an Exercise Plans Program Manager, GS -0301-14 with the United States Cyber Command at Fort Meade, Maryland. In her equal employment opportunity (EEO) complaint dated July 25, 2018, Complainant alleged discrimination based on her race (African -American), sex (female), and reprisal for prior protected EEO activity under an EEO statute unspecified in the record when she was indefinitely suspended without pay effective May 31, 2017. By decision letter on May 17, 2017, Complainant was indefinitely suspended without pay pending final adjudication of her (suspended) security clearance. Therein, the Agency advised Complainant of her rights, i.e., filing an appeal with the Merit Systems Protection Board (MSBB), electing corrective action via an appeal through the Office of Special Counsel (OSC) limited to a determination on whether the Agency took a covered personnel action against her in retaliation for a protected whistleblowing disclosure that is a prohibited personnel practice under 5 USC § 2302(b), and contac ting an EEO counselor located at Joint Base Andrews in Maryland within 45- calendar days of the effective date of the suspension, if she believed it was discriminatory . On June 26, 2017, Complainant filed a claim with OSC . After an inquiry, OSC closed Complainant’s claim, and gave her “individual right of action” (IRA) appeal rights to the MSPB , which she exercised on January 5, 2018. The MSPB dismissed Complainant’s appeal for lack of jurisdiction , and gave her review right s on her discrimination claims to the EEOC , which she exercised . In Catherina B. v. Air Force , EEOC Petition No. 0320180044 (May 22, 2018), the Commission found that because the MSPB denied jurisdiction over the appeal nor address ed any matters within the Commission’s jurisdiction , there was little point in continuing to view Complainant’s complaint as a “mixed case” as defined by 29 C.F.R. § 1614.302(a) , and it unmixed her case. The Commission advised the parties that the Agency must notify Complainant of the right to contact an EEO counselor within 45- calandar days of receipt of the Commission’s Legal Analysis: the Commission’s jurisdiction , there was little point in continuing to view Complainant’s complaint as a “mixed case” as defined by 29 C.F.R. § 1614.302(a) , and it unmixed her case. The Commission advised the parties that the Agency must notify Complainant of the right to contact an EEO counselor within 45- calandar days of receipt of the Commission’s decision, and advised that the date Complainant filed her appeal with the MSPB shall be deemed the date of initial contact with an EEO counselor. On June 29, 2018, Complainant contacted an EEO counselor at Joint Base Andrews, which forwarded Complainant’s EEO matter to the F ort Meade EEO office where she got EEO counseling. Thereafter, Complainant filed her EEO complaint. On September 10, 2018, the Agency dismis sed Complainant’s complaint. It found that the alleged discrimination occurred on May 31, 2017, and Complainant constructively initiated EEO counseling on January 5, 2018, long after the 45- calendar day time limit. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within 45-calendar days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45-calendar days of the effective date of the action. But this time limit shall be extended when despite due diligence the individual was prevented b y circumstances beyond her 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). On appeal, Complainant submits a declaration. Therein, she wri tes as follows. On or about May 17, 2017, she visited the EEO office on Joint Base Andrews where she had to sign in. She showed EEO Counselor 1 the indefinite suspension decision letter and was instructed by her to complete an initial questionnaire , and wa s then interviewed by an enlisted person. After the interview, the enlisted person advised that the incident did not meet the criteria under “protected class” within EEO guidelines, even though Complainant said she believed the action was in reprisal for h er assisting a colleague with filing an Inspector General (IG) complaint about improper hiring practices. Thereafter, she filed a claim with OSC alleging that the indefinite suspension was in retaliation for the IG complaint, her complaining about discrimi nation against her colleague, and her disclosures . Complainant argues that she timely contacted an EEO counselor on or about May 17, 2017, but was redirected to OSC. She also argues that she did not sit on her rights, i.e., she timely initiated her claim process with OSC, and properly exercised her appeal rights with the MSPB. In opposition to Complainant’s appeal, the Agency submits a declaration by EEO Counselor 1. She states as follows. She has no memory of conducting an intake with Complainant on or about May 17, 2017, and believed she would have remembered this since claims arising out of the Cyber Command are atypical and are redirected to the F ort Meade EEO office. Contrary to Complainant stating she had to sign in, the Joint Andrews Base EEO offi ce has no sign in process for visitors. She searched their database and emails and found no record of any intake on Complainant on or about May 17, 2017. There is no record of anyone who worked in the Joint Base Andrews EEO office speaking with Complainant in 2017. It is not her practice, nor that of her EEO office to advise potential complainants on whether incidents meet protected class criteria, and that is not their role when performing intake. Instead, the first steps at intake are to provide due proce ss and the opportunity to file an EEO complaint, without regard to how a claim may look on its face. The Agency argues that Complainant’s declaration is uncorroborated, self -serving, and contradicted by EEO Counselor 1. In a sur -reply, Complainant submitted a follow -up declaration , adding as follows. She told the enlisted person that she felt she was singled out as a Black woman because others without active clearances were given unclassified work. T he enlisted person asked if other African American women with suspended clearances were given unclassified work. She responded yes . He then said there was no discrimination based on a protected class , because the suspension was based on her lack of access to classified information it was not an EEO issue , and her rights lied with the MSPB. In its sur -reply response, the Agency argues that Complainant added nothing new of legal significance. The Agency met its burden of showing Complainant failed to timely initiate EEO counseling. She was explicitly advis ed of the 45- calendar day time limit to initiate EEO counseling when she received the suspension decision dated May 15, 2017. We find that it is more likely than not that Complainant did not initiate EEO counseling on or about May 17, 2017, and was not redirected to OSC and/or the MSPB by the EEO office. We find the statements by EEO Counselor 1 in her declaration persuasive. Also , contacting the OSC did not toll the time limit to initiate EEO counseling. Haran v. Treasury , EEOC Request No. 05950606 (Aug. 8, 1996). Final Decision: Accordingly, the FAD is AFFIRMED.	Catherina B. ,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 2019000392 Agency No. 7M1R1800640 DECISION On September 27, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 10, 2018, 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. BACKGROUND Complainant w as employed by the Agency as an Exercise Plans Program Manager, GS -0301-14 with the United States Cyber Command at Fort Meade, Maryland. In her equal employment opportunity (EEO) complaint dated July 25, 2018, Complainant alleged discrimination based on her race (African -American), sex (female), and reprisal for prior protected EEO activity under an EEO statute unspecified in the record when she was indefinitely suspended without pay effective May 31, 2017. By decision letter on May 17, 2017, Complainant was indefinitely suspended without pay pending final adjudication of her (suspended) security clearance. Therein, the Agency advised Complainant of her rights, i.e., filing an appeal with the Merit Systems Protection Board (MSBB), electing corrective action via an appeal through the Office of Special Counsel (OSC) limited to a determination on whether the Agency took a covered personnel action against her in retaliation for a protected whistleblowing disclosure that is a prohibited personnel practice under 5 USC § 2302(b), and contac ting an EEO counselor located at Joint Base Andrews in Maryland within 45- calendar days of the effective date of the suspension, if she believed it was discriminatory . On June 26, 2017, Complainant filed a claim with OSC . After an inquiry, OSC closed Complainant’s claim, and gave her “individual right of action” (IRA) appeal rights to the MSPB , which she exercised on January 5, 2018. The MSPB dismissed Complainant’s appeal for lack of jurisdiction , and gave her review right s on her discrimination claims to the EEOC , which she exercised . In Catherina B. v. Air Force , EEOC Petition No. 0320180044 (May 22, 2018), the Commission found that because the MSPB denied jurisdiction over the appeal nor address ed any matters within the Commission’s jurisdiction , there was little point in continuing to view Complainant’s complaint as a “mixed case” as defined by 29 C.F.R. § 1614.302(a) , and it unmixed her case. The Commission advised the parties that the Agency must notify Complainant of the right to contact an EEO counselor within 45- calandar days of receipt of the Commission’s decision, and advised that the date Complainant filed her appeal with the MSPB shall be deemed the date of initial contact with an EEO counselor. On June 29, 2018, Complainant contacted an EEO counselor at Joint Base Andrews, which forwarded Complainant’s EEO matter to the F ort Meade EEO office where she got EEO counseling. Thereafter, Complainant filed her EEO complaint. On September 10, 2018, the Agency dismis sed Complainant’s complaint. It found that the alleged discrimination occurred on May 31, 2017, and Complainant constructively initiated EEO counseling on January 5, 2018, long after the 45- calendar day time limit. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within 45-calendar days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45-calendar days of the effective date of the action. But this time limit shall be extended when despite due diligence the individual was prevented b y circumstances beyond her 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). On appeal, Complainant submits a declaration. Therein, she wri tes as follows. On or about May 17, 2017, she visited the EEO office on Joint Base Andrews where she had to sign in. She showed EEO Counselor 1 the indefinite suspension decision letter and was instructed by her to complete an initial questionnaire , and wa s then interviewed by an enlisted person. After the interview, the enlisted person advised that the incident did not meet the criteria under “protected class” within EEO guidelines, even though Complainant said she believed the action was in reprisal for h er assisting a colleague with filing an Inspector General (IG) complaint about improper hiring practices. Thereafter, she filed a claim with OSC alleging that the indefinite suspension was in retaliation for the IG complaint, her complaining about discrimi nation against her colleague, and her disclosures . Complainant argues that she timely contacted an EEO counselor on or about May 17, 2017, but was redirected to OSC. She also argues that she did not sit on her rights, i.e., she timely initiated her claim process with OSC, and properly exercised her appeal rights with the MSPB. In opposition to Complainant’s appeal, the Agency submits a declaration by EEO Counselor 1. She states as follows. She has no memory of conducting an intake with Complainant on or about May 17, 2017, and believed she would have remembered this since claims arising out of the Cyber Command are atypical and are redirected to the F ort Meade EEO office. Contrary to Complainant stating she had to sign in, the Joint Andrews Base EEO offi ce has no sign in process for visitors. She searched their database and emails and found no record of any intake on Complainant on or about May 17, 2017. There is no record of anyone who worked in the Joint Base Andrews EEO office speaking with Complainant in 2017. It is not her practice, nor that of her EEO office to advise potential complainants on whether incidents meet protected class criteria, and that is not their role when performing intake. Instead, the first steps at intake are to provide due proce ss and the opportunity to file an EEO complaint, without regard to how a claim may look on its face. The Agency argues that Complainant’s declaration is uncorroborated, self -serving, and contradicted by EEO Counselor 1. In a sur -reply, Complainant submitted a follow -up declaration , adding as follows. She told the enlisted person that she felt she was singled out as a Black woman because others without active clearances were given unclassified work. T he enlisted person asked if other African American women with suspended clearances were given unclassified work. She responded yes . He then said there was no discrimination based on a protected class , because the suspension was based on her lack of access to classified information it was not an EEO issue , and her rights lied with the MSPB. In its sur -reply response, the Agency argues that Complainant added nothing new of legal significance. The Agency met its burden of showing Complainant failed to timely initiate EEO counseling. She was explicitly advis ed of the 45- calendar day time limit to initiate EEO counseling when she received the suspension decision dated May 15, 2017. We find that it is more likely than not that Complainant did not initiate EEO counseling on or about May 17, 2017, and was not redirected to OSC and/or the MSPB by the EEO office. We find the statements by EEO Counselor 1 in her declaration persuasive. Also , contacting the OSC did not toll the time limit to initiate EEO counseling. Haran v. Treasury , EEOC Request No. 05950606 (Aug. 8, 1996). Accordingly, the FAD 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 operat ions 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 Unite d States District Court within ninety (90) calendar days from the date that you receive this decision. 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 t hat 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 secur ity 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 March 14, 2019 Date	[ "Haran v. Treasury , EEOC Request No. 05950606 (Aug. 8, 1996)", "29 C.F.R. § 1614.302(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.03806396201252937, 0.041449494659900665, -0.017633596435189247, 0.07187799364328384, 0.01755150966346264, 0.041490618139505386, 0.019258471205830574, -0.05144564062356949, -0.04215027391910553, 0.048381347209215164, 0.04445316642522812, -0.012674117460846901, -0.025719724595546722, -0.0...
78	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120172549.txt	0120172549.txt	TXT	text/plain	14,326	Janay K,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.	June 20, 2017	Appeal Number: 0120172549 Complaint Allegations: In her complaint summary, Complainant stated that she initiated EEO contact, on November 4, 2016, with an EEO Representative (E1). In a final decision, dated June 20, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant contacted its EEO Manager Office on November 4, 2016 and December 19, 2016 and was informed that she needed to contact the Office of Resolution Management (ORM) to initiate EEO contact. The Agency stated that E1 provided Complainant pamphlets about the EEO process and ORM's contact information. The Agency stated although it gave Complainant proper EEO information, she did not take appropriate action until February 15, 2017, which is beyond the 45-day limitation period. The Agency stated that Complainant signed documents acknowledging that she needed to contact ORM to initiate EEO contact. The instant appeal from Complainant followed. On appeal, Complainant stated that she contacted E1 on November 4, 2016 to file an EEO complaint following harassing incidents in October 2016. Specifically, Complainant stated, "Based on my understanding, [E1] was the individual I needed to come to with my complaint." Complainant stated that E1 provided her information and a form to complete. Complainant stated that she initiated EEO contact in a timely manner and returned to the same office when she did not receive any additional documentation. The record contains two documents titled "EEO Complaint Notice & Workplace Dispute Tracking Report" (Report). The first Report is dated November 4, 2016 and the second is dated December 19, 2016. On the first Report, Complainant stated "I [Complainant] came in today to make an EEO complaint [and] record for a hostile work environment [and] harassment in PTSD clinic." Both Reports state, "By signing below, I acknowledge that this meeting does not satisfy my obligation to contact an ORM EEO counselor within 45 calendar days of the date of the alleged discrimination in order to pursue an EEO complaint," and both are signed by Complainant. The Reports provide ORM contact information. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an 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. Under 29 C.F.R. § 1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (citing Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)). Here, Complainant satisfied the EEO Counselor contact requirement on November 4, 2016, although she did not contact ORM as dictated by the Agency. We find that Complainant reasonably considered an EEO Manager Office in the facility to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process as she stated on the Report that she wanted to file an EEO complaint. Background: At the time of events giving rise to this complaint, Complainant worked as a Secretary in the Posttraumatic Stress Disorder (PTSD) Clinic at an Agency Medical Center in Miami, Florida. On April 28, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability (Veteran with 30% or more disabilities) when it subjected her to hostile work environment harassment between June 2014 and October 2016. Complainant alleged that management badgered her about her use of sick leave, issued her a reprimand for a delay in completing tasks, accused her of falling asleep during meetings, issued two Reports of Contact to Complainant alleging failure to complete a task properly, issued Complainant a 15-day suspension and a reprimand, failed to place Complainant's rebuttal letter with her reprimand letter, removed her from the PTSD Clinic, marked Complainant as absent without official leave, and gave her a competency assessment. In her complaint summary, Complainant stated that she initiated EEO contact, on November 4, 2016, with an EEO Representative (E1). In a final decision, dated June 20, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant contacted its EEO Manager Office on November 4, 2016 and December 19, 2016 and was informed that she needed to contact the Office of Resolution Management (ORM) to initiate EEO contact. The Agency stated that E1 provided Complainant pamphlets about the EEO process and ORM's contact information. The Agency stated although it gave Complainant proper EEO information, she did not take appropriate action until February 15, 2017, which is beyond the 45-day limitation period. The Agency stated that Complainant signed documents acknowledging that she needed to contact ORM to initiate EEO contact. The instant appeal from Complainant followed. On appeal, Complainant stated that she contacted E1 on November 4, 2016 to file an EEO complaint following harassing incidents in October 2016. Specifically, Complainant stated, "Based on my understanding, [E1] was the individual I needed to come to with my complaint." Complainant stated that E1 provided her information and a form to complete. Complainant stated that she initiated EEO contact in a timely manner and returned to the same office when she did not receive any additional documentation. The record contains two documents titled "EEO Complaint Notice & Workplace Dispute Tracking Report" (Report). The first Report is dated November 4, 2016 and the second is dated December 19, 2016. On the first Report, Complainant stated "I [Complainant] came in today to make an EEO complaint [and] record for a hostile work environment [and] harassment in PTSD clinic." Both Reports state, "By signing below, I acknowledge that this meeting does not satisfy my obligation to contact an ORM EEO counselor within 45 calendar days of the date of the alleged discrimination in order to pursue an EEO complaint," and both are signed by Complainant. The Reports provide ORM contact information. Legal Analysis: Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary in the Posttraumatic Stress Disorder (PTSD) Clinic at an Agency Medical Center in Miami, Florida. On April 28, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability (Veteran with 30% or more disabilities) when it subjected her to hostile work environment harassment between June 2014 and October 2016. Complainant alleged that management badgered her about her use of sick leave, issued her a reprimand for a delay in completing tasks, accused her of falling asleep during meetings, issued two Reports of Contact to Complainant alleging failure to complete a task properly, issued Complainant a 15-day suspension and a reprimand, failed to place Complainant's rebuttal letter with her reprimand letter, removed her from the PTSD Clinic, marked Complainant as absent without official leave, and gave her a competency assessment. In her complaint summary, Complainant stated that she initiated EEO contact, on November 4, 2016, with an EEO Representative (E1). In a final decision, dated June 20, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant contacted its EEO Manager Office on November 4, 2016 and December 19, 2016 and was informed that she needed to contact the Office of Resolution Management (ORM) to initiate EEO contact. The Agency stated that E1 provided Complainant pamphlets about the EEO process and ORM's contact information. The Agency stated although it gave Complainant proper EEO information, she did not take appropriate action until February 15, 2017, which is beyond the 45-day limitation period. The Agency stated that Complainant signed documents acknowledging that she needed to contact ORM to initiate EEO contact. The instant appeal from Complainant followed. On appeal, Complainant stated that she contacted E1 on November 4, 2016 to file an EEO complaint following harassing incidents in October 2016. Specifically, Complainant stated, "Based on my understanding, [E1] was the individual I needed to come to with my complaint." Complainant stated that E1 provided her information and a form to complete. Complainant stated that she initiated EEO contact in a timely manner and returned to the same office when she did not receive any additional documentation. The record contains two documents titled "EEO Complaint Notice & Workplace Dispute Tracking Report" (Report). The first Report is dated November 4, 2016 and the second is dated December 19, 2016. On the first Report, Complainant stated "I [Complainant] came in today to make an EEO complaint [and] record for a hostile work environment [and] harassment in PTSD clinic." Both Reports state, "By signing below, I acknowledge that this meeting does not satisfy my obligation to contact an ORM EEO counselor within 45 calendar days of the date of the alleged discrimination in order to pursue an EEO complaint," and both are signed by Complainant. The Reports provide ORM contact information. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an 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. Under 29 C.F.R. § 1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (citing Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)). Here, Complainant satisfied the EEO Counselor contact requirement on November 4, 2016, although she did not contact ORM as dictated by the Agency. We find that Complainant reasonably considered an EEO Manager Office in the facility to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process as she stated on the Report that she wanted to file an EEO complaint. The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because the Agency informed Complainant that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." 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 has not met this burden with respect to Complainant's knowledge that she had to contact ORM. Complainant diligently pursued her rights visiting the EEO Manager Office on November 4, 2016 and December 19, 2016, and did not fully understand the need to contact ORM instead. Based on the specific circumstances herein, we find that the Agency improperly dismissed the complaint for untimely EEO Counselor contact. We caution the Agency about the confusion the EEO Complaint Notice & Workplace Dispute Tracking Report may cause with laypersons who reach out to an Agency office logically connected to the EEO process, such as an EEO Manager Office.	Janay K,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172549 Agency No. 200I05462017102008 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 20, 2017, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary in the Posttraumatic Stress Disorder (PTSD) Clinic at an Agency Medical Center in Miami, Florida. On April 28, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability (Veteran with 30% or more disabilities) when it subjected her to hostile work environment harassment between June 2014 and October 2016. Complainant alleged that management badgered her about her use of sick leave, issued her a reprimand for a delay in completing tasks, accused her of falling asleep during meetings, issued two Reports of Contact to Complainant alleging failure to complete a task properly, issued Complainant a 15-day suspension and a reprimand, failed to place Complainant's rebuttal letter with her reprimand letter, removed her from the PTSD Clinic, marked Complainant as absent without official leave, and gave her a competency assessment. In her complaint summary, Complainant stated that she initiated EEO contact, on November 4, 2016, with an EEO Representative (E1). In a final decision, dated June 20, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant contacted its EEO Manager Office on November 4, 2016 and December 19, 2016 and was informed that she needed to contact the Office of Resolution Management (ORM) to initiate EEO contact. The Agency stated that E1 provided Complainant pamphlets about the EEO process and ORM's contact information. The Agency stated although it gave Complainant proper EEO information, she did not take appropriate action until February 15, 2017, which is beyond the 45-day limitation period. The Agency stated that Complainant signed documents acknowledging that she needed to contact ORM to initiate EEO contact. The instant appeal from Complainant followed. On appeal, Complainant stated that she contacted E1 on November 4, 2016 to file an EEO complaint following harassing incidents in October 2016. Specifically, Complainant stated, "Based on my understanding, [E1] was the individual I needed to come to with my complaint." Complainant stated that E1 provided her information and a form to complete. Complainant stated that she initiated EEO contact in a timely manner and returned to the same office when she did not receive any additional documentation. The record contains two documents titled "EEO Complaint Notice & Workplace Dispute Tracking Report" (Report). The first Report is dated November 4, 2016 and the second is dated December 19, 2016. On the first Report, Complainant stated "I [Complainant] came in today to make an EEO complaint [and] record for a hostile work environment [and] harassment in PTSD clinic." Both Reports state, "By signing below, I acknowledge that this meeting does not satisfy my obligation to contact an ORM EEO counselor within 45 calendar days of the date of the alleged discrimination in order to pursue an EEO complaint," and both are signed by Complainant. The Reports provide ORM contact information. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an 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. Under 29 C.F.R. § 1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (citing Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)). Here, Complainant satisfied the EEO Counselor contact requirement on November 4, 2016, although she did not contact ORM as dictated by the Agency. We find that Complainant reasonably considered an EEO Manager Office in the facility to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process as she stated on the Report that she wanted to file an EEO complaint. The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because the Agency informed Complainant that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." 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 has not met this burden with respect to Complainant's knowledge that she had to contact ORM. Complainant diligently pursued her rights visiting the EEO Manager Office on November 4, 2016 and December 19, 2016, and did not fully understand the need to contact ORM instead. Based on the specific circumstances herein, we find that the Agency improperly dismissed the complaint for untimely EEO Counselor contact. We caution the Agency about the confusion the EEO Complaint Notice & Workplace Dispute Tracking Report may cause with laypersons who reach out to an Agency office logically connected to the EEO process, such as an EEO Manager Office. CONCLUSION We REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the matter to the Agency for further processing. ORDER (E1016) 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 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 January 4, 2018 __________________ Date ------------------------------------------------------------ ------------------------------------------------------------	[ "Cristantiello v. Army, EEOC Appeal No. 01992817 (Dec. 19, 2000)", "Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998)", "Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)", "Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)", ...	[ -0.055478282272815704, 0.06935571879148483, -0.022495290264487267, 0.07870061695575714, 0.039409492164850235, 0.06270009279251099, 0.014611633494496346, -0.02502474933862686, 0.01842060685157776, 0.0036697143223136663, 0.00155812653247267, 0.022325433790683746, -0.004808340687304735, 0.068...
79	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142951.txt	0120142951.txt	TXT	text/plain	18,248		August 18, 2014	Appeal Number: 0120142951 Background: At the time of events giving rise to this complaint, Complainant first worked as a Senior Instrument Mechanic and later as a Maintenance Test Equipment (MTE) Instruments Technician at the Agency's Sequoyah Nuclear Plant in Soddy-Daisy, Tennessee. On April 15, 2014, Complainant filed an equal employment opportunity (EEO) complaint alleging that he was discriminated against based on his age (52) and disability when: 1. On or about September 1, 2012, he learned that he was denied increased pay to perform pre-outage duties for the Ready-Ready work assignment for the upcoming outage due to start in October 2012; 2. On February 20, 2013, he was given an improper medical restriction by the Agency, and management suggested he talk to Agency retirement services; and he was discriminated against on the above bases and sex (male) when: 3. On February 28, 2013, management gave him three options: a) termination, b) disability retirement, or c) accept a demotion, and he was forced to choose a demotion since he could not afford disability retirement or termination; and 4. Upon taking the demotion to the position of MTE Instruments Technician effective March 11, 2013, he performed the same duties as others who maintained the Senior Instrument Mechanic title and pay, so he was entitled to higher pay.1 The Agency dismissed the complaint for failure to timely initiate claim EEO counseling. It reasoned that he initiated EEO counseling on February 7, 2014, beyond the 45 day time limit to do so. While the Agency conceded that Complainant previously initiated EEO counseling (on issues 2 and 3), it found that he withdrew this counseling request. Legal Analysis: 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. Final Decision: Accordingly, we find that the Agency is estopped from finding that Complainant withdrew his March 4, 2013, EEO contact. We find that Complainant initiated contact with an EEO counselor on issues 2, 3 and 4 on March 4, 2013. Accordingly, these issues were timely raised with an EEO counselor. The President signed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5 ("the Act") on January 29, 2009. The Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the ADEA. With respect to Title VII claims, Section 3 of the Act provides that: ...an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice. Section 3 of the Act also provides that back pay is recoverable for Title VII violations up to two years preceding the "filing of the charge," or the filing of a complaint in the federal sector, where the pay discrimination outside of the filing period is similar or related to pay discrimination within the filing period. Issue 4 is also timely under the Lilly Ledbetter Fair Pay Act. We agree with the Agency that Complainant failed to timely initiate EEO counseling regarding issue 1. He raised issue 1 with a counselor for the first time on February 7, 2014, beyond the 45 calendar day time limit. In opposition to Complainant's appeal, in a footnote, the Agency cites to EEOC cases that rule that where a Complainant files a grievance through the negotiated grievance procedure before he files an EEO complaint on the same matter, he has elected the grievance forum, making the formal complaint subject to dismissal. The Agency did not dismiss any portion of the complaint on this ground, nor does it explicitly argue on appeal for a dismissal on this ground. Because the Agency is not covered by 5 U.S.C. § 7121(d), filing of a grievance does not constitute an election to proceed in that forum, and not the EEO forum. 29 C.F.R. § 1614.301; Sammons v. Tennessee Valley Authority, EEOC Appeal No. 01A55142 (Dec. 16, 2005). Further, the record does not contain a copy of a collective bargaining agreement. Accordingly, we cannot discern whether allegations of discrimination can be raised therein, another requirement for an election to be made. 29 C.F.R. § 1614.301. The Agency's dismissal of issues 2, 3, and 4, as numbered herein, is REVERSED.	Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency. Appeal No. 0120142951 Agency No. TVA-2014-0034 DECISION On August 18, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 29, 2014, dismissing his 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., the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant first worked as a Senior Instrument Mechanic and later as a Maintenance Test Equipment (MTE) Instruments Technician at the Agency's Sequoyah Nuclear Plant in Soddy-Daisy, Tennessee. On April 15, 2014, Complainant filed an equal employment opportunity (EEO) complaint alleging that he was discriminated against based on his age (52) and disability when: 1. On or about September 1, 2012, he learned that he was denied increased pay to perform pre-outage duties for the Ready-Ready work assignment for the upcoming outage due to start in October 2012; 2. On February 20, 2013, he was given an improper medical restriction by the Agency, and management suggested he talk to Agency retirement services; and he was discriminated against on the above bases and sex (male) when: 3. On February 28, 2013, management gave him three options: a) termination, b) disability retirement, or c) accept a demotion, and he was forced to choose a demotion since he could not afford disability retirement or termination; and 4. Upon taking the demotion to the position of MTE Instruments Technician effective March 11, 2013, he performed the same duties as others who maintained the Senior Instrument Mechanic title and pay, so he was entitled to higher pay.1 The Agency dismissed the complaint for failure to timely initiate claim EEO counseling. It reasoned that he initiated EEO counseling on February 7, 2014, beyond the 45 day time limit to do so. While the Agency conceded that Complainant previously initiated EEO counseling (on issues 2 and 3), it found that he withdrew this counseling request. ANALYSIS AND FINDINGS By email on March 4, 2013, Complainant initiated EEO contact with EEO Counselor 1. He raised issues 2 and 3, and referred to the facts in issue 4. On March 8, 2013, Complainant accepted a demotion to the position of MTE Instruments Technician. On March 14, 2013, Complainant sent an email to EEO counselor 1 asking why his "EEO complaint" was dropped. By email reply the same day EEO Counselor 1 quoted language that if you file a formal EEO complaint you may not file a union grievance on the same matter, but may still engage in the informal EEO complaint process while pursuing the union grievance. She then explained to Complainant that since he filed a union grievance, he "cannot file a formal complaint" on this same issue. She advised Complainant that if he contended the grievance was not finalized, he could continue the informal EEO process. The grievance was filed on March 6, 2013.2 By email later in the day on March 14, 2014, EEO counselor 2 asked Complainant if he was still choosing to pursue EEO counseling. On March 15, 2013, Complainant replied, with a copy to EEO Counselor 1, that he would like to continue the EEO process, would be available to meet and complete all forms needed for the process, and understood he must complete the EEO process before filing an EEO complaint. On the same day, EEO Counselor 2 responded to Complainant that based on their discussion she was continuing as agreed. She added that Complainant requested the matter not be an open EEO Counseling case but an inquiry only. She instructed Complainant that if the issue was not resolved to contact her within 45-calendar days from March 15, 2013, to officially start EEO counseling, if he deemed necessary. On April 14, 2013, Complainant wrote EEO Counselor 2 that his grievance was denied by the Plant Manager, there were no pending grievances, and he believed this was no longer an EEO concern but more of an Office of Inspector General (OIG) matter. He thanked her for her time and assistance. On February 7, 2014, Complainant reinitiated contact with an EEO counselor. He wrote that on February 7, 2014, his union representative notified him that the union would no longer pursue his grievance. By email to EEO Counselor 2 on February 26, 2014, Complainant explained that "I did file the original complaint with [EEO counselor 1] and it was stopped by her at that time, because the grievance process was ongoing. That was my understanding of the email she had sent me and that I forwarded to you...." The record suggests the referenced email refers to EEO Counselor 1's email of March 14, 2013. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. § 1614.604(c). Here, on March 14, 2013, EEO Counselor 1 advised Complainant that because he filed a union grievance, he "cannot file a formal complaint" on this same issue. This was incorrect advice.3 While both EEO counselor 1 and 2 advised Complainant that he could continue with the informal EEO process, the record does not show that they ever explicitly advised him he could file a formal complaint. This advice that the Agency gave was confusing, and likely tainted Complainant's view of his EEO rights, explaining his de-emphasizing EEO thereafter. In explaining why he waited until February 7, 2014, sometime after his grievance reached a dead end, to reinitiate EEO counseling, Complainant pointed to EEO Counselor 1's advice. Given her advice we accept Complainant's account, even in light of the various communications between Complainant and Counselors 1 and 2 recounted in this decision. Accordingly, we find that the Agency is estopped from finding that Complainant withdrew his March 4, 2013, EEO contact. We find that Complainant initiated contact with an EEO counselor on issues 2, 3 and 4 on March 4, 2013. Accordingly, these issues were timely raised with an EEO counselor. The President signed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5 ("the Act") on January 29, 2009. The Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the ADEA. With respect to Title VII claims, Section 3 of the Act provides that: ...an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice. Section 3 of the Act also provides that back pay is recoverable for Title VII violations up to two years preceding the "filing of the charge," or the filing of a complaint in the federal sector, where the pay discrimination outside of the filing period is similar or related to pay discrimination within the filing period. Issue 4 is also timely under the Lilly Ledbetter Fair Pay Act. We agree with the Agency that Complainant failed to timely initiate EEO counseling regarding issue 1. He raised issue 1 with a counselor for the first time on February 7, 2014, beyond the 45 calendar day time limit. In opposition to Complainant's appeal, in a footnote, the Agency cites to EEOC cases that rule that where a Complainant files a grievance through the negotiated grievance procedure before he files an EEO complaint on the same matter, he has elected the grievance forum, making the formal complaint subject to dismissal. The Agency did not dismiss any portion of the complaint on this ground, nor does it explicitly argue on appeal for a dismissal on this ground. Because the Agency is not covered by 5 U.S.C. § 7121(d), filing of a grievance does not constitute an election to proceed in that forum, and not the EEO forum. 29 C.F.R. § 1614.301; Sammons v. Tennessee Valley Authority, EEOC Appeal No. 01A55142 (Dec. 16, 2005). Further, the record does not contain a copy of a collective bargaining agreement. Accordingly, we cannot discern whether allegations of discrimination can be raised therein, another requirement for an election to be made. 29 C.F.R. § 1614.301. The Agency's dismissal of issues 2, 3, and 4, as numbered herein, is REVERSED. Its dismissal of issue 1, as numbered herein, is AFFIRMED. ORDER The Agency is ordered to process issues 2, 3, and 4, as numbered herein, 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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 February 4, 2015 __________________ Date 1We find that Complainant raised issue 4 as part of his complaint. See Correspondence File, at 4, 52, 67 (complaint at remedy section), 73 - 74. The Agency failed to capture this issue. Complainant compared himself to three female Senior Instrument Mechanics, since retired, who did not perform field work and a male Senior Instrument Mechanic at the Browns Ferry Nuclear Plant. 2On March 8, 2013, a supervisor denied the grievance, and it was denied again by the Sequoyah Nuclear Plant Manager on April 12, 2013. The grievance was denied again by the Agency's Senior Manager, Labor Relations, on October 22, 2013. By this time the Senior Manager characterized the grievance as regarding management violating the "General Agreement" when the Agency placed additional medical restrictions on Complainant resulting in him incurring medical expenses and being placed in another position at lower pay. The medical expenses referred to Complainant paying for an examination in an attempt to show he met the medical standards for his job. 3A complainant should not be advised that he cannot file a complaint. Rather, he can be advised of the regulations. If he chooses to file a complaint which the Agency finds is subject to dismissal, it should dismiss the complaint with appeal rights to the EEOC. In any event, as explained below, Complainant was not subject to the election requirement (subjecting a formal complaint to dismissal if it is filed after a union grievance). ------------------------------------------------------------ ------------------------------------------------------------	[ "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.604(c)", "29 C.F.R. § 1614.301", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "42 U.S.C. § 2000e", "29 U.S.C. § 206", "29 U.S.C. § 791", "5 U....	[ -0.1241820901632309, 0.07008785009384155, 0.03608160838484764, 0.028234729543328285, -0.010657835751771927, 0.0016932417638599873, 0.025899797677993774, -0.01737678423523903, -0.02865772508084774, 0.056544508785009384, 0.021052895113825798, -0.01932641677558422, 0.06495122611522675, -0.008...
80	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120084008.txt	0120084008.txt	TXT	text/plain	68,345	Tammy S., Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.	April 27, 2009	Appeal Number: 0120084008 Complaint Allegations: in her complaint from 2001. We affirm the Agency's dismissal of these claims. Complainant signed a settlement agreement in March 2002 which settled her complaint and withdrew those claims from the EEO process. However, the facts surrounding the filing of Complainant's complaint in March 2001 will be used as background evidence for our analysis of claim 1. Claim 4 was dismissed as a claim that alleges dissatisfaction with the processing of her current complaint. Complainant specifically claimed that the Agency did not properly engage in the informal counseling process, did not allow her legal representation during its management inquiry into the re-publication of the cartoon, and did not allow her to present witnesses at that time. We find that the Agency properly dismissed this claim. These particular issues have been addressed in the course of the processing of the complaint, as Complainant has been represented by counsel, and her witnesses were interviewed during the investigation phase. Although the Agency may not have engaged in traditional counseling, we find that this did not unduly prejudice Complainant, as she still was given her notice of EEO rights and responsibilities, was able to file a formal complaint, and as Complainant came into the EEO process well-versed in her rights as a complainant. However, we caution the Agency that the pre-complaint processing procedures found at 29 C.F.R. § 1614.105 and more fully delineated in the EEO MD-110, Chapter 2, serve to aid in developing the claims in a complaint and serve to inform a complainant of valuable information about the EEO process. Deviations from these procedures are inadvisable. The Agency's departure from procedures will be addressed more fully in the section below discussing Complainant's Motion to Sanction. Sexual harassment and harassment based on reprisal It is well-settled that harassment based on an individual's protected bases or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). In order to establish a claim of harassment under these bases, a complainant must show that: (1) she belongs to a statutorily protected class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome verbal or physical conduct related to her membership in her protected bases and/or her prior EEO activity; (3) the harassment complained of was based on her protected bases and/or prior EEO activity; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We find that Complainant has established that she is a member of two protected classes, by virtue of her sex and having engaged in prior protected EEO activity, and that she was subjected to conduct based on her membership in these two classes. Complainant not only engaged in protected EEO activity on her own behalf, but she was the Agency's first full-time EEO Specialist at MSIC. She raised issues with management regarding GW's "Trail of Beers" and the Christmas Social. By doing so, she drew the ire of GW and many employees at MSIC who believed they could no longer wish each other "Merry Christmas," even though this is not what she had advocated. She was labeled the "EEO Gestapo," and GW's "Lord of the Laser" cartoon depicted her as "Ms. E.E.O'Doofus." Complainant testified that the Director told her that that GW "resents the EEO system." GW's cartoon used sexual imagery and language in reference to Complainant, which many co-workers recognized as such, and recognized that Complainant was the individual it was intended to depict. Complainant also argued that GW had published a "parable" which insinuated that her husband was lucky to be losing his vision as he would no longer have to look at her. Additionally, a box of fliers was delivered to her office with the word "Dufus" written in black marker on the box. The totality of this behavior implicates both Complainant's EEO activity and her sex. Although the Agency disputes that Complainant was depicted in the cartoon, and disputes the sexual nature of the cartoon, we find their arguments to be unpersuasive. A review of the "Lord of the Laser" cartoon, keeping in mind the context in which it was drawn, the relationship among GW, Complainant, and the other employees at MSIC, and the testimony of co-workers about how MSIC employees viewed the cartoon, is supportive of this conclusion. Co-worker 1 (CO-1) testified that, "It's obvious who they [the characters] are," in the cartoon and "it's obvious" that it's a "a male penis, okay shooting it like he's shooting, you know, at someone. And I think he said EEO Dufus, Ms. EEO Dufus or something like that in the cartoon kind of thing." (OCI transcript, pp. 178-180). Co-worker 2 (CO-2) testified that, "We only had one EEO person at that time and the caricature was such that it was pretty hard not to miss it if you had any inkling of what it was. I mean, everybody that I've seen that's seen the cartoon, immediately that's what they see." (OCI transcript, p. 199). He also stated that, "I heard about it and it became a discussion again around the building a little bit and people talked about it." (OCI transcript, p. 201). There is no question that Complainant found this conduct to be unwelcome. She stated in her Brief that, since her return to the Agency in May 2003, she avoids EEO activities at MSIC, tends to stay in her office, avoids the cafeteria where she would be likely to encounter GW and friends of GW, and she tries to avoid any contact with GW. Although the Agency did not accept the issue for investigation, Complainant also argued in her brief that employees in the workplace are openly hostile to her, which has had the effect of denying her a rotational assignment to another office because the employees in that office did not wish to work with her. We find that the harassment had the purpose or effect of unreasonably interfering with Complainant's work performance and/or creating an intimidating, hostile, or offensive work environment. The Agency maintains that the re-publication of the "Lord of the Laser" cartoon on GW's public Internet website removes it from a connection to the workplace, and that it therefore cannot have interfered with Complainant's ability to function at work. The Agency also argues that Complainant had voluntarily gone to GW's website and opened the link to the cartoon, thereby exposing herself to the content. However, we find that the hostile environment consisted of more than just Complainant's exposure to the content of GW's website. GW announced his website at an EEO training class in September 2005, thereby re-introducing it into the workplace, after which many employees apparently went back to their desks and pulled up the site to view its content. Many then discussed it in the workplace. There is testimony in the record from CO-2 that, after GW announced his website, he "heard about it up and down the hall." (OCI transcript, pp. 201-202). The Agency further maintains that the actions of GW were not reasonably likely to deter a complainant or others from engaging in protected EEO activity, and that there was no evidence to support the proposition that GW published his cartoon to dissuade Complainant from participating in EEO activities. (Agency's Brief, p. 8). However, CO-1 testified that she had told a co-worker that she had decided against considering a position in the IG (Inspector General) office: "And I said I wouldn't be an IG, just like Brenda, afraid the same thing would happen to me that's happened to Brenda, you know, because she's had a tough time since she was the EEO counselor." (OCI transcript, p. 180). We find that the hostility to the EEO process shown by GW through the cartoon, the "parable" on his website, and his other writings is sufficient to demonstrate that he engaged in these actions in order to harass Complainant for her role in the EEO program, and for engaging in protected activity. Any other employee who might have been disposed to make similar objections to offensive material, to work to increase diversity and tolerance at MSIC, or to volunteer to be a collateral-duty or full-time EEO Counselor or Specialist would surely think twice before deciding if they themselves would want to be subjected to the same treatment. We additionally find that Complainant need not show that she was subjected to sexual harassment in order to establish that she was subjected to a pattern of harassment based on her sex and prior EEO activity. The Agency mistakes Complainant's burden here, and is attempting to impose an additional burden on what she is legally required to show by conflating the two types of harassment. Aspects of the unwelcome conduct perpetuated by GW are sexual as well as hostile to the EEO system, which we find sufficient to establish Complainant's claim. Liability of the Agency As to the element (5) of a claim of harassment, we now turn to whether there is a basis for imputing liability to the Agency for GW's actions. Complainant argued in her Brief on appeal that GW should be considered a supervisor for the purposes of the Agency's potential liability. She noted that he is a Team Leader, and that the Agency's preparation of his testimony before his investigative interview implied his status as a manager. (Complainant's Brief, p.1). The Agency agued in its Brief in opposition to Complainant's appeal that GW should be considered a co-worker of Complainant's, as he was never in any position to take any sort of adverse personnel action against Complainant. (Agency's Brief, p. 7). We find that GW should be considered a co-worker for the purposes of analysis of the Agency's liability, as he did not have the authority to take tangible employment actions against Complainant. An agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. § 1604.11(d). Whether the agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996). "Appropriate corrective action" is a response that is reasonably calculated to stop the harassment. When an employer becomes aware of alleged harassment, the employer has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996). Complainant was subjected to harassment as perpetuated by a co-worker, GW, and she complained to Agency management about the dissemination of GW's website address in the September 2005 EEO class. Complainant raised the matter with the Director on October 24, 2005. She alleged that the re-introduction of the "Lord of the Laser" cartoon created a hostile work environment, and that the Agency failed to take immediate and appropriate remedial measures. We find that the Agency did not engage in immediate corrective action when it took two months to block GW's website from viewing in the workplace. Although the Agency claimed that it took "prompt" corrective action, it has not supplied a date, or any documentation in the record, which shows when it actually took action to block the website. Complainant asserted that it took the Agency two months to block employees from being able to view GW's website from Agency computers; there is no evidence of record to the contrary. In the absence of any justification for the Agency's delay, we find that taking two months to block GW's website on MSIC computers is not prompt, corrective action. Denial of official time to process her EEO complaint Under 29 C.F.R. § 1614.605(b), a complainant "shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information." As further delineated in EEO MD-110, Chapter 6, § VIII.C., "reasonable" is defined as "whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information." Complainant argued before the AJ that the Agency had inappropriately limited her to a total of 15 hours of official time to process her complaint. She framed the issue as one of retaliation by the Agency when it did not allow her to claim more hours than this during the course of the discovery period. The Agency argued before the AJ that Complainant was incorrect in filing an amendment to her complaint in order to address this issue, citing sections of EEO MD-110 to support its contention that Complainant should have raised the issue with Agency officials to obtain relief. Complainant responded that she had raised the matter of official time with the appropriate Agency officials and was advised that she was limited to 15 hours. Complainant claimed that the Office of General Counsel representative informed her that it was an Agency "standard operating procedure" that only 15 hours of official time were allowed to work on EEO complaints, although she was never shown this policy in writing, despite her requests for a copy of it. The AJ ordered Complainant to submit an accounting of the amount of time she claimed she was inappropriately denied. Although there is an indication that Complainant did submit this to the Agency, the record before the Commission at this time does not contain this information. Complainant need not establish that the Agency denied her official time as a form of reprisal. The Commission has held that allegations of per se violations of 29 C.F.R. § 1614.605(b) should not be processed in accordance with 29 C.F.R. § 1614.108 because the focus is not on motivation, but rather on the justification to determine whether the complainant was denied a reasonable amount of requested official time. See Edwards v. United States Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996). We note that an internal agency policy, such as Complainant alleges existed here, which places a strict cap on the number of hours a complainant can spend on an EEO complaint would violate 29 C.F.R. § 1614.605(b); the Agency is advised to analyze all requests for official time on a case-by-case basis. We find that Complainant should have been granted more than 15 hours in total to process her complaint. A case of this complexity, in which there was a hearing request and extensive discovery, would warrant far more time than that. Complainant asserted in her brief to the AJ on August 20, 2007, that she could account for the hours she expended working on her complaint. On December 12, 2007, the Agency extended an offer of 30 additional hours of official time to Complainant. The record does not indicate that Complainant either accepted or rejected this offer. On remand, we find that Complainant should submit to the Agency an accounting of the hours to which she claims she is entitled. The Agency shall grant Complainant the appropriate compensation for her time, whether in the form of compensatory time, restoration of annual leave, or administrative time, as applicable, for the reasonable amount of hours taken by Complainant to work on her complaint. Role of the Office of General Counsel EEO MD-110, Chap. 1, § III. (Nov. 9, 1999) provides, in relevant part: Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program. Generally speaking, the EEO office at an agency is responsible for the neutral counseling and investigation of the EEO complaint, and for developing an impartial and appropriate factual record from which a decision maker can render a decision on the allegations of discrimination. Once the process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency's Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. During the informal counseling stage and the investigation into the accepted issues of the complaint, however, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator. In the case of Rucker v. Department of the Treasury, EEOC Appeal No. 0120082225 (February 4, 2011), request for reconsideration denied, EEOC Request No. 0520110343 (April 26, 2011), the complainant claimed that the agency's Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management affidavits before submission to the EEO investigator. We advised the agency that "it should be careful to avoid even the appearance that it is interfering with the EEO process." In this case, Complainant claims that the Office of General Counsel impermissibly interfered with the development of the record, and acted improperly, when it was permitted to question the witnesses in the complaint prior to their investigative interviews. She argued that the Office of General Counsel effectively "represented" GW and his interests during the investigation when it prepared GW for two hours before, and represented him during, his investigative interview. She claims that the Office of General Counsel threatened to cancel her pre-approved annual leave when scheduling her deposition toward the end of the discovery period, in an effort to intimidate her and retaliate against her. According to Complainant, she and her attorney offered to extend the discovery period, but the Agency declined. Background: Complainant served as a collateral-duty EEO Counselor at the Agency's Missile and Space Intelligence Center (MSIC) at Redstone Arsenal, Alabama, from 1995 through January 1999. Her full-time position was that of an Intelligence Officer. She first engaged in protected EEO activity on her own behalf in 1996, when she filed an informal complaint regarding the denial of a promotion in retaliation for her work as a collateral-duty EEO Counselor. That EEO complaint was settled at the informal stage. (Report of Investigation (ROI), Exhibit F-6). In January 1999, Complainant was promoted to the position of EEO Specialist, GS-13. She was the first person to serve in that role in a full-time capacity at the facility. In her role as the EEO Specialist, Complainant implemented policies set by Agency headquarters personnel regarding equal opportunity in the workplace. She instituted a recruitment program, in conjunction with the Special Emphasis Program members, which broadened the Agency's recruitment efforts beyond the universities from which it traditionally drew (which graduated predominantly White engineering students). Now included in recruitment efforts were historically Black colleges and universities and other schools in the region with a greater Hispanic, Asian, or American Indian student membership. (ROI, Ex. A). This worked to increase diversity at the facility. In November 2000, Complainant met with the Director of the facility to voice her opinion about an intranet site on the Agency's computer network, run by another Agency employee (GW). Complainant wanted to draw the Director's attention to a specific article entitled, "Trail of Beers," which was a play on the "Trail of Tears," an annual event held in the region each November to commemorate the history of Native Americans. GW's parody involved the participants drinking alcohol and stopping at numerous bars, and used off-color language to describe the activities. Complainant informed the Director that the article would likely be offensive to many at the facility. The Director reportedly spoke to GW about it, and informed him that he would not be able to publish his site on the Agency intranet anymore. (ROI, Ex. A). Also in November 2000, Complainant informed Agency management that in order to be a more inclusive workplace and not be seen as endorsing one particular religion, the Christmas Social should be renamed the Holiday Social, in compliance with the Guidelines on Religion in the Federal Workplace and Agency policy. (ROI, Ex. A). Complainant claims that as a result of her objections to the "Trail of Beers" and the issue regarding the Christmas Social, GW began to engage in a campaign of retaliation against her for this protected EEO activity. He challenged employees, through his intranet site, to wish each other "Merry Christmas" at the office to see what the "EEO Gestapo" would do about it. (ROI, Ex. A). Complainant noted that the workplace was predominantly Christian, and many employees asked her why they were not allowed to say "Merry Christmas" anymore. In December 2000, GW published a cartoon on his intranet site entitled the "Lord of the Lasers." He also e-mailed it to the entire facility. In this multi-picture, hand-drawn cartoon story, two superheroes (named Lord of the Laser and Photon Boy) are depicted trying to defeat "Dr. Mirrors." When they find Dr. Mirrors, they discover that it is "the sadly misguided mayor of Beltway City, the honorable Ms. Edna Ethel O'Doofus" also called "Ms. E.E.O'Doofus." In the cartoon, the main characters are shown shooting a woman's figure with laser guns, saying "Maintain 6 to 9 position," and answering "No problem, it is my favorite." (ROI, Ex. F-10). Complainant maintained that the cartoon was violent, sexually explicit, implied that she would have oral sex with GW, and showed her being killed by "phallic-shaped" laser guns. (ROI, Ex. A). She noted that the stated lesson of the cartoon at its end was that "Ms. E.E.O'Doofus would inconvenience the majority to protect the minority." Complainant stated that she had been informed by the Director that GW "resents the EEO system." (ROI, Ex. A). In March 2001, Complainant filed an EEO complaint which claimed that she had been subjected to sexual and religious harassment and retaliation, and subjected to a hostile work environment with respect to the above-described events. In June 2001, GW was issued a 12-day suspension for misuse of government equipment, failure to comply with a supervisory directive, and for creating a hostile environment. (ROI, Ex. F-9). According to Complainant, other Agency personnel showed their support for GW by taking up a monetary collection to reimburse him for lost pay and send his family to the beach during the suspension, and by erecting welcome back signs outside the facility gates when his suspension was over. (ROI, Ex. A). On March 6, 2002, Complainant and the Agency signed a settlement agreement in which she agreed to withdraw her complaint, and the Agency agreed to allow her to take a sabbatical so that she could return to school and earn her Master's degree. She was absent from the workplace from May 2002 through May 2003. (Ex. F-10, p. 321). Upon her return to the workplace in 2003, Complainant assumed a position as an Intelligence Analyst, GS-13. She did not resume any of her duties as an EEO Specialist or as a collateral-duty EEO Counselor. In September 2005, EEO training was conducted at the facility. The EEO course was part of an Agency program called "Diversity Management and Equal Opportunity in the 21st Century (DEO-21)," and the focus of this particular three-day class was "Prevention of Sexual and Religious Harassment in the Workplace." (ROI, Ex. F-11). GW was an attendee of the course at this time, although Complainant was not. The trainer invited each of the participants to introduce themselves and share something personal with the class. When given this opportunity, GW informed the class that he was the webmaster of his own website, external to the Agency, and he shared the website address with the class and encouraged them to view it. Co-workers who had been in the class informed Complainant about this announcement, and she viewed the website. This website contained the same images and writings for which GW was disciplined in 2001. In October 2005, Complainant contacted the Director to inform him of the public re-publication of the Lord of the Laser cartoon, and to advise him of sexual harassment and retaliation by GW. On October 24, 2005, the Director spoke to GW about the website, and GW then password-protected the site so that it was no longer publicly available. On a subsequent unspecified date, the Agency blocked access to GW's website from all facility computers so that it could not be viewed in the workplace. The Agency conducted a management inquiry into the allegations, which did not resolve the issue. The management inquiry was completed on November 28, 2005. Complainant initiated EEO counseling on December 1, 2005. She was issued her Notice of Final Interview on February 28, 2006. The management inquiry report also served as the EEO Counselor's report. On March 14, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), religion (Christian), and in reprisal for prior protected EEO activity arising under Title VII (serving as an EEO Specialist and the filing of her complaint in March 2001) when: 1. she was subjected to harassment (sexual) when she learned in October 2005 that a co-worker, GW, published offensive material on his personal website which she believed contained explicit drawings and language of a sexual nature directed at her; 2. she was subjected to harassment (sexual) when in December 2000, a co-worker, GW, published offensive material on the classified MSIC network which she believed contained explicit drawings and language of a sexual nature directed at her; 3. she was subjected to harassment on the basis of religion when in November 2000, a co-worker, GW, took exception to her advising management that a poster advertising MSIC's "Christmas" social should be changed to read MSIC's "holiday" social, and challenged MSIC employees to say "Merry Christmas" and see what the "EEO Gestapo," referring to Complainant, could do about it; and 4. on February 8, 2006, Complainant notified the Equal Opportunity Office (EO) of her dissatisfaction with the processing of her EEO complaint, and alleged that she was not provided informal (pre-complaint) counseling regarding her allegation identified as claim 1 above, objecting to the substitution of the management inquiry for EEO counseling, to not having representation by counsel during the inquiry, and to the fact that she was not permitted to present any witnesses. The Agency issued a letter on May 15, 2006, in which it partially dismissed three of the issues of Complainant's complaint. It accepted for investigation Complainant's claim 1, as listed above. The Agency dismissed claims 2 and 3 under 29 C.F.R. § 1614.107(a)(1), as the same claim as claims previously raised in the EEO process. The Agency found that claims 2 and 3 were the same claims as those raised in Complainant's March 2001 EEO complaint, which was resolved by the settlement agreement signed on March 6, 2002. The Agency further found that claims 2 and 3 did not constitute a continuing violation, noting that Complainant had not raised other claims of discrimination or harassment which could have occurred between December 2000 and October 2005. The Agency dismissed claim 4 under 29 C.F.R. § 1614.107(a)(8), as a claim alleging dissatisfaction with processing of a complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Once the parties engaged in discovery, the Agency submitted a Motion for Summary Judgment on August 17, 2007. Complainant submitted her Opposition Brief in Support of Response to the Agency's Motion for Summary Judgment on September 10, 2007. The Agency submitted a reply to the Complainant's opposition on September 17, 2007. During the hearing process, Complainant also raised a claim that she had been denied a reasonable amount of official time to process her complaint. The parties exchanged briefs on the matter. Motions to Compel regarding discovery requests were also filed. In a teleconference on December 12, 2007, the AJ indicated his intent to issue a decision without a hearing in favor of the Agency. Before the AJ issued his decision however, Complainant withdrew her hearing request on April 30, 2008, and requested a final agency decision on the record. Although the AJ issued his Order dismissing the hearing request on May 6, 2008, remanding the complaint to the Agency to issue a final agency decision, the Agency did not do so within the 60 days provided for at 29 C.F.R. § 1614.110(b). Complainant sent a request to the Commission on September 24, 2008, in which she asked the Commission to enforce its regulations order the Agency to issue a decision. She argued at that time that the Agency had acted in bad faith in the processing of her complaint, and asked the Commission to sanction the Agency.1 The Agency did not issue its final decision pursuant to 29 C.F.R. § 1614.110(b) until March 20, 2009, nearly 11 months after Complainant requested a decision on the record. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Therein, the Agency first affirmed the partial dismissal of Complainant's claims 2, 3, and 4. Specific to claim 4, the Agency noted that the investigator for the management inquiry did interview three of her witnesses, that she received a timely notice of her rights and responsibilities in the EEO process, and that she had not shown how she was aggrieved by the failure to have counsel represent her at that stage. The Agency found that Complainant had not established that she had been subjected to sexual harassment for which the Agency should be liable. It found that Complainant belonged to a protected class. However, it found that Complainant had not established that she had been subjected to unwelcome conduct based on her membership in the protected class. The Agency analyzed the content of GW's website and of the "Lord of the Laser" cartoon, finding that "the context of the cartoon seems to be a broad attack on the adverse impact of the equal employment opportunity program on the workplace, as the author perceives it." It noted that GW denied that the cartoon depicted Complainant, and that he stated that the drawings were not intended to be sexual in nature. After noting that Complainant's allegations that the references to the numbers six and nine, and that the shape of the laser guns was phallic-like, were support for her assertion that the cartoon was sexual in nature, the decision concluded that the "cartoon does not contain an overt depiction of sexual activity." It disputed Complainant's contention that references in the cartoon were connected to her role regarding the Christmas Social issue in December 2000. The Agency also concluded that Complainant had not shown that the harassing conduct was connected to her gender because the cartoon had been published five years before, and primarily focused on GW's opinions about EEO in the workplace. It stated, "The sexual angle is not overt and the Complainant was not mentioned by name." As to whether the content of the website unreasonably interfered with Complainant's work performance, it found that the materials appeared on a private website, not part of the work environment, and the only connection to the workplace in 2005 was GW mentioning it during an EEO class where Complainant was not present. It further stated, "A reasonable person would not necessarily find a cartoon on a private Internet site to be inherently offensive to her workplace, particularly given the site's disclaimers and the lack of connection to the office." Finally, the Agency found that Complainant had not established a basis for imputing liability to the Agency because it had taken "immediate and appropriate corrective action upon learning of the re-publication of the cartoon." It noted that GW is a co-worker of Complainant's, and so the Agency had a less strict standard to meet than if GW had been a manager. It found that the Director interviewed employees from the EEO class and counseled GW, who removed the cartoon from public view (password-protected his site). The Agency then, it asserted, promptly blocked access to GW's website from all MSIC computers. As to Complainant's claim of a hostile work environment based on her prior protected EEO activity, the Agency summarily concluded that, based on its finding that Complainant had not been subjected to sexual harassment, she had also failed to establish a claim of harassment based on reprisal. The Agency concluded that Complainant had not established that she had been discriminated against. Complainant's instant appeal followed. CONTENTIONS ON APPEAL In her brief in support of her appeal (Complainant's Brief), filed on May 22, 2009, Complainant contends that the Agency's final agency decision should be reversed and a finding of discrimination entered in her favor. She argues that GW discussed his website in an EEO class so that employees would go back to their desks and pull up the content while at work, and then discuss it. She contends that the Agency misrepresented the immediacy of its actions to stop the harassment by GW in 2005, and that it took two months for the Agency to block access to GW's website from MSIC computers. Complainant argues that the cartoon was originally published on Agency computers, which would make it Agency property that should have been destroyed in 2002, and not allowed to be re-published on GW's internet site. She also notes that the Agency failed to discuss another aspect of GW's actions that she claimed constituted reprisal, a "Chinese parable" on the site that she claimed was a thinly veiled reference to her and her husband, a former MSIC employee who had progressively lost his vision. In the parable, it is said that it is not such a tragedy for the man to be losing his sight, given what he has to look at each day when he wakes up. In support of her claim that she was still being subjected to retaliation, Complainant argues that she was not able to do a rotational assignment in September 2006 because the employees in the receiving office did not want to interact with her; that a box of sexual harassment brochures addressed to her, but which had the word "Dufus" written across it in black marker, was delivered to her office in May 2006; and that she has been given lower appraisals and no awards for her performance. Complainant argues that the Agency improperly dismissed claims 2, 3, and 4 of her complaint. Complainant maintains that GW's cartoon clearly references her, is violent and sexual in nature, and demonstrates GW's hostility to her and to the EEO program in general. On July 6, 2009, the Agency submitted a brief in opposition to Complainant's appeal (Agency's Brief) in which it argues that its final agency decision should be affirmed. The Agency maintains that Complainant cannot establish that she was subjected to sexual harassment because of her sex and in reprisal for her EEO activity, because she cannot show that the actions were motivated by her sex, and because those actions were not severe or pervasive and did not affect a condition or privilege of her employment. It argues that Complainant cannot establish that the behavior complained of was unwelcome because Complainant voluntarily went to GW's public Internet website to view the materials on it when she heard that he had broadcast news about his website in the EEO class. It also maintains that Complainant was not subjected to reprisal because she did not identify any adverse treatment that was based on a retaliatory motive that was reasonably likely to deter her or others from engaging in protected EEO activity. The Agency's position is that Complainant must prove that she was subjected to sexual harassment, in order to prove that she was subjected to a larger pattern of harassment based on her sex and in reprisal for her EEO activity. The Agency disputes that the harassment was motivated by Complainant's sex, noting that she argued throughout her appeal brief that most of GW's behavior was motivated by his dislike of the EEO system. It also disputes Complainant's contention that the Agency was responsible for allowing GW to republish his writings on his own personal Internet site, and disputes that such action would constitute reprisal by the Agency, as it is insufficient to establish discriminatory animus by any of the Agency managers involved. The Agency disputes many of the assertions made by Complainant as factual in her brief, and disputes the notion that the Agency "owned" the cartoon drawn by GW because it had originally been published on the Agency intranet. It argues that Complainant did not amend her EEO complaint to include the denied job rotation in September 2006, and that it should not be considered within the context of the instant complaint. The Agency further argues that GW's cartoon is not sexual in nature. Finally, the Agency argues that it properly dismissed Complainant's claims 2, 3, and 4 when it accepted Complainant's complaint for investigation. On May 22, 2009, Complainant filed a Motion to Sanction, in which she argues that the Agency should be sanctioned for its conduct in the processing of her complaint. Complainant claims that the Agency purposefully delayed the processing of her complaint, and blatantly disregarded the timeframes contained in 29 C.F.R. Part 1614, most egregiously taking 11 months to issue the final agency decision from the date she requested it. She argues that the Agency did not properly conduct the informal EEO counseling stage, during which she would have been able to offer evidence, identify witnesses, and have legal representation. She argues on appeal, as she had before the AJ, that the Agency denied her a "reasonable" amount of official time to process her complaint, and that she was informed that she was limited to a total of 15 hours of official time, even during the hearing stage when she was attempting to serve and comply with time-consuming discovery requests and interrogatories. She states that the Office of General Counsel threatened to have pre-approved annual leave canceled so that it could schedule her deposition during that time period (although the leave ultimately was not canceled). Complainant also contends that the Agency's Office of General Counsel impermissibly interfered with the course of the investigation, and acted improperly, when it was permitted to question the witnesses in the complaint prior to their investigative interviews, and when it prepared GW for two hours before, and represented him during, his investigative interview. Complainant posits that because the Office of General Counsel accompanied GW to his EEO investigative interview, he was being represented by the Agency as a manager. Complainant argues that the Agency EEO Office and Office of General Counsel each knew that the Agency was engaging in impermissible behavior, citing a 2001 letter sent from the Commission's Office of Federal Operations, Federal Sector Programs, to the Agency's EEO Office which discussed the proper role of an Office of General Counsel in the EEO process. The Agency filed an Opposition to Complainant's Motion to Sanction on July 6, 2009, concurrent with its brief in opposition to the appeal. It argues that the Motion to Sanction should be denied for several reasons. The Agency notes that Complainant had raised her argument regarding official time before the AJ, and argues that she had been unable to specify how many hours she was denied that she should have instead been granted. The AJ did not issue a ruling on the official time request, but the Agency extended an offer of 30 additional hours of official time on December 12, 2007. It claims that Complainant and the AJ did not respond to this offer. As to the substitution of the management inquiry for more traditional EEO counseling, the Agency argues that Complainant had been unable to specify how exactly she was harmed by this process, noting that she was still issued a notice of rights and responsibilities and filed a formal complaint. The Agency adamantly maintains that its Office of General Counsel (OGC) had properly interviewed witnesses in the EEO investigation, and that it did not improperly influence their testimony in any way. It claims the OGC it needed to interview the witnesses before the EEO Investigator's fact finding conference so that it would "ensure that all pertinent lines of questioning are pursued since the OCI investigator will not have the benefit of previously interviewing the witnesses to learn the full scope of their personal knowledge concerning the allegations." As to her claim that she was threatened with the cancellation of her long-scheduled and pre-approved annual leave, the Agency notes that the leave was not canceled. Finally, as to the delays in processing her complaint and issuing a final agency decision, the Agency argues that Complainant knew that the AJ had planned to issue a decision granting the Agency's Motion for Summary Judgment, as per the discussion in the December 12, 2007, teleconference, and that she was advised that if she wanted a decision faster than the AJ stated he would be able to issue it, she had the option of asking for a final agency decision. That she took four months to withdraw her hearing request, was evidence, claims the Agency, that she could wait. The Agency complains that in actuality it was the party that was harmed as it did not have the benefit of a decision from an AJ on the merits of the complaint when issuing its final agency decision. It argues that Complainant "alleges no harm from this delay." On July 15, 2009, Complainant then filed a Motion to Strike the Agency's Reply to Complainant's Appeal and Response to Complainant's Motion to Sanction, arguing that each were untimely filed with the Commission. Complainant claimed that the Agency's EEO office received her Appeal Brief on May 29, 2009, as evidenced by the USPS Track and Confirm notification and signature on the certified, return receipt card, and that the 30-day period to file a response therefore expired on June 29, 2009. She argued that the Agency's Brief, dated July 6, 2009, was therefore untimely filed, and that the Agency should be held to the strict timeframes in the regulations, as she was during the processing of her complaint and hearing request. On July 27, 2009, the Agency filed an Opposition to the Complainant's Motion to Strike as well as its own Cross Motion to Dismiss the Appeal. The Agency stated that its Office of General Counsel received Complainant's Brief and Motion for Sanctions on June 3, 2009, which would have placed the 30th day on July 3, 2009, which was a Friday and was the observation of the July 4th Federal holiday. It argued that its July 6, 2009, filing was therefore timely under 29 C.F.R. § 1614.604(d). The Agency further argued in its Cross Motion to Dismiss Appeal that because Complainant did not properly serve the Office of General Counsel with her Brief and Motion, which it argued was the proper "opposing party," not the EEO Office, her entire appeal should be dismissed as improperly served on the Agency. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Legal Analysis: The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED The issues presented are: 1) whether the Agency properly found that Complainant had not established that she was subjected to unlawful harassment based on her sex and in retaliation for protected EEO activity; 2) whether liability can be imputed to the Agency for actions taken by an employee in connection with his private website; 3) whether the Agency's EEO Office and Office of General Counsel acted improperly in the course of processing Complainant's complaint, warranting a sanction. BACKGROUND Complainant served as a collateral-duty EEO Counselor at the Agency's Missile and Space Intelligence Center (MSIC) at Redstone Arsenal, Alabama, from 1995 through January 1999. Her full-time position was that of an Intelligence Officer. She first engaged in protected EEO activity on her own behalf in 1996, when she filed an informal complaint regarding the denial of a promotion in retaliation for her work as a collateral-duty EEO Counselor. That EEO complaint was settled at the informal stage. (Report of Investigation (ROI), Exhibit F-6). In January 1999, Complainant was promoted to the position of EEO Specialist, GS-13. She was the first person to serve in that role in a full-time capacity at the facility. In her role as the EEO Specialist, Complainant implemented policies set by Agency headquarters personnel regarding equal opportunity in the workplace. She instituted a recruitment program, in conjunction with the Special Emphasis Program members, which broadened the Agency's recruitment efforts beyond the universities from which it traditionally drew (which graduated predominantly White engineering students). Now included in recruitment efforts were historically Black colleges and universities and other schools in the region with a greater Hispanic, Asian, or American Indian student membership. (ROI, Ex. A). This worked to increase diversity at the facility. In November 2000, Complainant met with the Director of the facility to voice her opinion about an intranet site on the Agency's computer network, run by another Agency employee (GW). Complainant wanted to draw the Director's attention to a specific article entitled, "Trail of Beers," which was a play on the "Trail of Tears," an annual event held in the region each November to commemorate the history of Native Americans. GW's parody involved the participants drinking alcohol and stopping at numerous bars, and used off-color language to describe the activities. Complainant informed the Director that the article would likely be offensive to many at the facility. The Director reportedly spoke to GW about it, and informed him that he would not be able to publish his site on the Agency intranet anymore. (ROI, Ex. A). Also in November 2000, Complainant informed Agency management that in order to be a more inclusive workplace and not be seen as endorsing one particular religion, the Christmas Social should be renamed the Holiday Social, in compliance with the Guidelines on Religion in the Federal Workplace and Agency policy. (ROI, Ex. A). Complainant claims that as a result of her objections to the "Trail of Beers" and the issue regarding the Christmas Social, GW began to engage in a campaign of retaliation against her for this protected EEO activity. He challenged employees, through his intranet site, to wish each other "Merry Christmas" at the office to see what the "EEO Gestapo" would do about it. (ROI, Ex. A). Complainant noted that the workplace was predominantly Christian, and many employees asked her why they were not allowed to say "Merry Christmas" anymore. In December 2000, GW published a cartoon on his intranet site entitled the "Lord of the Lasers." He also e-mailed it to the entire facility. In this multi-picture, hand-drawn cartoon story, two superheroes (named Lord of the Laser and Photon Boy) are depicted trying to defeat "Dr. Mirrors." When they find Dr. Mirrors, they discover that it is "the sadly misguided mayor of Beltway City, the honorable Ms. Edna Ethel O'Doofus" also called "Ms. E.E.O'Doofus." In the cartoon, the main characters are shown shooting a woman's figure with laser guns, saying "Maintain 6 to 9 position," and answering "No problem, it is my favorite." (ROI, Ex. F-10). Complainant maintained that the cartoon was violent, sexually explicit, implied that she would have oral sex with GW, and showed her being killed by "phallic-shaped" laser guns. (ROI, Ex. A). She noted that the stated lesson of the cartoon at its end was that "Ms. E.E.O'Doofus would inconvenience the majority to protect the minority." Complainant stated that she had been informed by the Director that GW "resents the EEO system." (ROI, Ex. A). In March 2001, Complainant filed an EEO complaint which claimed that she had been subjected to sexual and religious harassment and retaliation, and subjected to a hostile work environment with respect to the above-described events. In June 2001, GW was issued a 12-day suspension for misuse of government equipment, failure to comply with a supervisory directive, and for creating a hostile environment. (ROI, Ex. F-9). According to Complainant, other Agency personnel showed their support for GW by taking up a monetary collection to reimburse him for lost pay and send his family to the beach during the suspension, and by erecting welcome back signs outside the facility gates when his suspension was over. (ROI, Ex. A). On March 6, 2002, Complainant and the Agency signed a settlement agreement in which she agreed to withdraw her complaint, and the Agency agreed to allow her to take a sabbatical so that she could return to school and earn her Master's degree. She was absent from the workplace from May 2002 through May 2003. (Ex. F-10, p. 321). Upon her return to the workplace in 2003, Complainant assumed a position as an Intelligence Analyst, GS-13. She did not resume any of her duties as an EEO Specialist or as a collateral-duty EEO Counselor. In September 2005, EEO training was conducted at the facility. The EEO course was part of an Agency program called "Diversity Management and Equal Opportunity in the 21st Century (DEO-21)," and the focus of this particular three-day class was "Prevention of Sexual and Religious Harassment in the Workplace." (ROI, Ex. F-11). GW was an attendee of the course at this time, although Complainant was not. The trainer invited each of the participants to introduce themselves and share something personal with the class. When given this opportunity, GW informed the class that he was the webmaster of his own website, external to the Agency, and he shared the website address with the class and encouraged them to view it. Co-workers who had been in the class informed Complainant about this announcement, and she viewed the website. This website contained the same images and writings for which GW was disciplined in 2001. In October 2005, Complainant contacted the Director to inform him of the public re-publication of the Lord of the Laser cartoon, and to advise him of sexual harassment and retaliation by GW. On October 24, 2005, the Director spoke to GW about the website, and GW then password-protected the site so that it was no longer publicly available. On a subsequent unspecified date, the Agency blocked access to GW's website from all facility computers so that it could not be viewed in the workplace. The Agency conducted a management inquiry into the allegations, which did not resolve the issue. The management inquiry was completed on November 28, 2005. Complainant initiated EEO counseling on December 1, 2005. She was issued her Notice of Final Interview on February 28, 2006. The management inquiry report also served as the EEO Counselor's report. On March 14, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), religion (Christian), and in reprisal for prior protected EEO activity arising under Title VII (serving as an EEO Specialist and the filing of her complaint in March 2001) when: 1. she was subjected to harassment (sexual) when she learned in October 2005 that a co-worker, GW, published offensive material on his personal website which she believed contained explicit drawings and language of a sexual nature directed at her; 2. she was subjected to harassment (sexual) when in December 2000, a co-worker, GW, published offensive material on the classified MSIC network which she believed contained explicit drawings and language of a sexual nature directed at her; 3. she was subjected to harassment on the basis of religion when in November 2000, a co-worker, GW, took exception to her advising management that a poster advertising MSIC's "Christmas" social should be changed to read MSIC's "holiday" social, and challenged MSIC employees to say "Merry Christmas" and see what the "EEO Gestapo," referring to Complainant, could do about it; and 4. on February 8, 2006, Complainant notified the Equal Opportunity Office (EO) of her dissatisfaction with the processing of her EEO complaint, and alleged that she was not provided informal (pre-complaint) counseling regarding her allegation identified as claim 1 above, objecting to the substitution of the management inquiry for EEO counseling, to not having representation by counsel during the inquiry, and to the fact that she was not permitted to present any witnesses. The Agency issued a letter on May 15, 2006, in which it partially dismissed three of the issues of Complainant's complaint. It accepted for investigation Complainant's claim 1, as listed above. The Agency dismissed claims 2 and 3 under 29 C.F.R. § 1614.107(a)(1), as the same claim as claims previously raised in the EEO process. The Agency found that claims 2 and 3 were the same claims as those raised in Complainant's March 2001 EEO complaint, which was resolved by the settlement agreement signed on March 6, 2002. The Agency further found that claims 2 and 3 did not constitute a continuing violation, noting that Complainant had not raised other claims of discrimination or harassment which could have occurred between December 2000 and October 2005. The Agency dismissed claim 4 under 29 C.F.R. § 1614.107(a)(8), as a claim alleging dissatisfaction with processing of a complaint. At the	Tammy S., Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120084008 Hearing No. 420-2007-00107X Agency No. DIA-00006-2006 (formerly 06-DI-03) DECISION On April 27, 2009, Complainant filed an appeal from the Agency's March 20, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED The issues presented are: 1) whether the Agency properly found that Complainant had not established that she was subjected to unlawful harassment based on her sex and in retaliation for protected EEO activity; 2) whether liability can be imputed to the Agency for actions taken by an employee in connection with his private website; 3) whether the Agency's EEO Office and Office of General Counsel acted improperly in the course of processing Complainant's complaint, warranting a sanction. BACKGROUND Complainant served as a collateral-duty EEO Counselor at the Agency's Missile and Space Intelligence Center (MSIC) at Redstone Arsenal, Alabama, from 1995 through January 1999. Her full-time position was that of an Intelligence Officer. She first engaged in protected EEO activity on her own behalf in 1996, when she filed an informal complaint regarding the denial of a promotion in retaliation for her work as a collateral-duty EEO Counselor. That EEO complaint was settled at the informal stage. (Report of Investigation (ROI), Exhibit F-6). In January 1999, Complainant was promoted to the position of EEO Specialist, GS-13. She was the first person to serve in that role in a full-time capacity at the facility. In her role as the EEO Specialist, Complainant implemented policies set by Agency headquarters personnel regarding equal opportunity in the workplace. She instituted a recruitment program, in conjunction with the Special Emphasis Program members, which broadened the Agency's recruitment efforts beyond the universities from which it traditionally drew (which graduated predominantly White engineering students). Now included in recruitment efforts were historically Black colleges and universities and other schools in the region with a greater Hispanic, Asian, or American Indian student membership. (ROI, Ex. A). This worked to increase diversity at the facility. In November 2000, Complainant met with the Director of the facility to voice her opinion about an intranet site on the Agency's computer network, run by another Agency employee (GW). Complainant wanted to draw the Director's attention to a specific article entitled, "Trail of Beers," which was a play on the "Trail of Tears," an annual event held in the region each November to commemorate the history of Native Americans. GW's parody involved the participants drinking alcohol and stopping at numerous bars, and used off-color language to describe the activities. Complainant informed the Director that the article would likely be offensive to many at the facility. The Director reportedly spoke to GW about it, and informed him that he would not be able to publish his site on the Agency intranet anymore. (ROI, Ex. A). Also in November 2000, Complainant informed Agency management that in order to be a more inclusive workplace and not be seen as endorsing one particular religion, the Christmas Social should be renamed the Holiday Social, in compliance with the Guidelines on Religion in the Federal Workplace and Agency policy. (ROI, Ex. A). Complainant claims that as a result of her objections to the "Trail of Beers" and the issue regarding the Christmas Social, GW began to engage in a campaign of retaliation against her for this protected EEO activity. He challenged employees, through his intranet site, to wish each other "Merry Christmas" at the office to see what the "EEO Gestapo" would do about it. (ROI, Ex. A). Complainant noted that the workplace was predominantly Christian, and many employees asked her why they were not allowed to say "Merry Christmas" anymore. In December 2000, GW published a cartoon on his intranet site entitled the "Lord of the Lasers." He also e-mailed it to the entire facility. In this multi-picture, hand-drawn cartoon story, two superheroes (named Lord of the Laser and Photon Boy) are depicted trying to defeat "Dr. Mirrors." When they find Dr. Mirrors, they discover that it is "the sadly misguided mayor of Beltway City, the honorable Ms. Edna Ethel O'Doofus" also called "Ms. E.E.O'Doofus." In the cartoon, the main characters are shown shooting a woman's figure with laser guns, saying "Maintain 6 to 9 position," and answering "No problem, it is my favorite." (ROI, Ex. F-10). Complainant maintained that the cartoon was violent, sexually explicit, implied that she would have oral sex with GW, and showed her being killed by "phallic-shaped" laser guns. (ROI, Ex. A). She noted that the stated lesson of the cartoon at its end was that "Ms. E.E.O'Doofus would inconvenience the majority to protect the minority." Complainant stated that she had been informed by the Director that GW "resents the EEO system." (ROI, Ex. A). In March 2001, Complainant filed an EEO complaint which claimed that she had been subjected to sexual and religious harassment and retaliation, and subjected to a hostile work environment with respect to the above-described events. In June 2001, GW was issued a 12-day suspension for misuse of government equipment, failure to comply with a supervisory directive, and for creating a hostile environment. (ROI, Ex. F-9). According to Complainant, other Agency personnel showed their support for GW by taking up a monetary collection to reimburse him for lost pay and send his family to the beach during the suspension, and by erecting welcome back signs outside the facility gates when his suspension was over. (ROI, Ex. A). On March 6, 2002, Complainant and the Agency signed a settlement agreement in which she agreed to withdraw her complaint, and the Agency agreed to allow her to take a sabbatical so that she could return to school and earn her Master's degree. She was absent from the workplace from May 2002 through May 2003. (Ex. F-10, p. 321). Upon her return to the workplace in 2003, Complainant assumed a position as an Intelligence Analyst, GS-13. She did not resume any of her duties as an EEO Specialist or as a collateral-duty EEO Counselor. In September 2005, EEO training was conducted at the facility. The EEO course was part of an Agency program called "Diversity Management and Equal Opportunity in the 21st Century (DEO-21)," and the focus of this particular three-day class was "Prevention of Sexual and Religious Harassment in the Workplace." (ROI, Ex. F-11). GW was an attendee of the course at this time, although Complainant was not. The trainer invited each of the participants to introduce themselves and share something personal with the class. When given this opportunity, GW informed the class that he was the webmaster of his own website, external to the Agency, and he shared the website address with the class and encouraged them to view it. Co-workers who had been in the class informed Complainant about this announcement, and she viewed the website. This website contained the same images and writings for which GW was disciplined in 2001. In October 2005, Complainant contacted the Director to inform him of the public re-publication of the Lord of the Laser cartoon, and to advise him of sexual harassment and retaliation by GW. On October 24, 2005, the Director spoke to GW about the website, and GW then password-protected the site so that it was no longer publicly available. On a subsequent unspecified date, the Agency blocked access to GW's website from all facility computers so that it could not be viewed in the workplace. The Agency conducted a management inquiry into the allegations, which did not resolve the issue. The management inquiry was completed on November 28, 2005. Complainant initiated EEO counseling on December 1, 2005. She was issued her Notice of Final Interview on February 28, 2006. The management inquiry report also served as the EEO Counselor's report. On March 14, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), religion (Christian), and in reprisal for prior protected EEO activity arising under Title VII (serving as an EEO Specialist and the filing of her complaint in March 2001) when: 1. she was subjected to harassment (sexual) when she learned in October 2005 that a co-worker, GW, published offensive material on his personal website which she believed contained explicit drawings and language of a sexual nature directed at her; 2. she was subjected to harassment (sexual) when in December 2000, a co-worker, GW, published offensive material on the classified MSIC network which she believed contained explicit drawings and language of a sexual nature directed at her; 3. she was subjected to harassment on the basis of religion when in November 2000, a co-worker, GW, took exception to her advising management that a poster advertising MSIC's "Christmas" social should be changed to read MSIC's "holiday" social, and challenged MSIC employees to say "Merry Christmas" and see what the "EEO Gestapo," referring to Complainant, could do about it; and 4. on February 8, 2006, Complainant notified the Equal Opportunity Office (EO) of her dissatisfaction with the processing of her EEO complaint, and alleged that she was not provided informal (pre-complaint) counseling regarding her allegation identified as claim 1 above, objecting to the substitution of the management inquiry for EEO counseling, to not having representation by counsel during the inquiry, and to the fact that she was not permitted to present any witnesses. The Agency issued a letter on May 15, 2006, in which it partially dismissed three of the issues of Complainant's complaint. It accepted for investigation Complainant's claim 1, as listed above. The Agency dismissed claims 2 and 3 under 29 C.F.R. § 1614.107(a)(1), as the same claim as claims previously raised in the EEO process. The Agency found that claims 2 and 3 were the same claims as those raised in Complainant's March 2001 EEO complaint, which was resolved by the settlement agreement signed on March 6, 2002. The Agency further found that claims 2 and 3 did not constitute a continuing violation, noting that Complainant had not raised other claims of discrimination or harassment which could have occurred between December 2000 and October 2005. The Agency dismissed claim 4 under 29 C.F.R. § 1614.107(a)(8), as a claim alleging dissatisfaction with processing of a complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Once the parties engaged in discovery, the Agency submitted a Motion for Summary Judgment on August 17, 2007. Complainant submitted her Opposition Brief in Support of Response to the Agency's Motion for Summary Judgment on September 10, 2007. The Agency submitted a reply to the Complainant's opposition on September 17, 2007. During the hearing process, Complainant also raised a claim that she had been denied a reasonable amount of official time to process her complaint. The parties exchanged briefs on the matter. Motions to Compel regarding discovery requests were also filed. In a teleconference on December 12, 2007, the AJ indicated his intent to issue a decision without a hearing in favor of the Agency. Before the AJ issued his decision however, Complainant withdrew her hearing request on April 30, 2008, and requested a final agency decision on the record. Although the AJ issued his Order dismissing the hearing request on May 6, 2008, remanding the complaint to the Agency to issue a final agency decision, the Agency did not do so within the 60 days provided for at 29 C.F.R. § 1614.110(b). Complainant sent a request to the Commission on September 24, 2008, in which she asked the Commission to enforce its regulations order the Agency to issue a decision. She argued at that time that the Agency had acted in bad faith in the processing of her complaint, and asked the Commission to sanction the Agency.1 The Agency did not issue its final decision pursuant to 29 C.F.R. § 1614.110(b) until March 20, 2009, nearly 11 months after Complainant requested a decision on the record. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Therein, the Agency first affirmed the partial dismissal of Complainant's claims 2, 3, and 4. Specific to claim 4, the Agency noted that the investigator for the management inquiry did interview three of her witnesses, that she received a timely notice of her rights and responsibilities in the EEO process, and that she had not shown how she was aggrieved by the failure to have counsel represent her at that stage. The Agency found that Complainant had not established that she had been subjected to sexual harassment for which the Agency should be liable. It found that Complainant belonged to a protected class. However, it found that Complainant had not established that she had been subjected to unwelcome conduct based on her membership in the protected class. The Agency analyzed the content of GW's website and of the "Lord of the Laser" cartoon, finding that "the context of the cartoon seems to be a broad attack on the adverse impact of the equal employment opportunity program on the workplace, as the author perceives it." It noted that GW denied that the cartoon depicted Complainant, and that he stated that the drawings were not intended to be sexual in nature. After noting that Complainant's allegations that the references to the numbers six and nine, and that the shape of the laser guns was phallic-like, were support for her assertion that the cartoon was sexual in nature, the decision concluded that the "cartoon does not contain an overt depiction of sexual activity." It disputed Complainant's contention that references in the cartoon were connected to her role regarding the Christmas Social issue in December 2000. The Agency also concluded that Complainant had not shown that the harassing conduct was connected to her gender because the cartoon had been published five years before, and primarily focused on GW's opinions about EEO in the workplace. It stated, "The sexual angle is not overt and the Complainant was not mentioned by name." As to whether the content of the website unreasonably interfered with Complainant's work performance, it found that the materials appeared on a private website, not part of the work environment, and the only connection to the workplace in 2005 was GW mentioning it during an EEO class where Complainant was not present. It further stated, "A reasonable person would not necessarily find a cartoon on a private Internet site to be inherently offensive to her workplace, particularly given the site's disclaimers and the lack of connection to the office." Finally, the Agency found that Complainant had not established a basis for imputing liability to the Agency because it had taken "immediate and appropriate corrective action upon learning of the re-publication of the cartoon." It noted that GW is a co-worker of Complainant's, and so the Agency had a less strict standard to meet than if GW had been a manager. It found that the Director interviewed employees from the EEO class and counseled GW, who removed the cartoon from public view (password-protected his site). The Agency then, it asserted, promptly blocked access to GW's website from all MSIC computers. As to Complainant's claim of a hostile work environment based on her prior protected EEO activity, the Agency summarily concluded that, based on its finding that Complainant had not been subjected to sexual harassment, she had also failed to establish a claim of harassment based on reprisal. The Agency concluded that Complainant had not established that she had been discriminated against. Complainant's instant appeal followed. CONTENTIONS ON APPEAL In her brief in support of her appeal (Complainant's Brief), filed on May 22, 2009, Complainant contends that the Agency's final agency decision should be reversed and a finding of discrimination entered in her favor. She argues that GW discussed his website in an EEO class so that employees would go back to their desks and pull up the content while at work, and then discuss it. She contends that the Agency misrepresented the immediacy of its actions to stop the harassment by GW in 2005, and that it took two months for the Agency to block access to GW's website from MSIC computers. Complainant argues that the cartoon was originally published on Agency computers, which would make it Agency property that should have been destroyed in 2002, and not allowed to be re-published on GW's internet site. She also notes that the Agency failed to discuss another aspect of GW's actions that she claimed constituted reprisal, a "Chinese parable" on the site that she claimed was a thinly veiled reference to her and her husband, a former MSIC employee who had progressively lost his vision. In the parable, it is said that it is not such a tragedy for the man to be losing his sight, given what he has to look at each day when he wakes up. In support of her claim that she was still being subjected to retaliation, Complainant argues that she was not able to do a rotational assignment in September 2006 because the employees in the receiving office did not want to interact with her; that a box of sexual harassment brochures addressed to her, but which had the word "Dufus" written across it in black marker, was delivered to her office in May 2006; and that she has been given lower appraisals and no awards for her performance. Complainant argues that the Agency improperly dismissed claims 2, 3, and 4 of her complaint. Complainant maintains that GW's cartoon clearly references her, is violent and sexual in nature, and demonstrates GW's hostility to her and to the EEO program in general. On July 6, 2009, the Agency submitted a brief in opposition to Complainant's appeal (Agency's Brief) in which it argues that its final agency decision should be affirmed. The Agency maintains that Complainant cannot establish that she was subjected to sexual harassment because of her sex and in reprisal for her EEO activity, because she cannot show that the actions were motivated by her sex, and because those actions were not severe or pervasive and did not affect a condition or privilege of her employment. It argues that Complainant cannot establish that the behavior complained of was unwelcome because Complainant voluntarily went to GW's public Internet website to view the materials on it when she heard that he had broadcast news about his website in the EEO class. It also maintains that Complainant was not subjected to reprisal because she did not identify any adverse treatment that was based on a retaliatory motive that was reasonably likely to deter her or others from engaging in protected EEO activity. The Agency's position is that Complainant must prove that she was subjected to sexual harassment, in order to prove that she was subjected to a larger pattern of harassment based on her sex and in reprisal for her EEO activity. The Agency disputes that the harassment was motivated by Complainant's sex, noting that she argued throughout her appeal brief that most of GW's behavior was motivated by his dislike of the EEO system. It also disputes Complainant's contention that the Agency was responsible for allowing GW to republish his writings on his own personal Internet site, and disputes that such action would constitute reprisal by the Agency, as it is insufficient to establish discriminatory animus by any of the Agency managers involved. The Agency disputes many of the assertions made by Complainant as factual in her brief, and disputes the notion that the Agency "owned" the cartoon drawn by GW because it had originally been published on the Agency intranet. It argues that Complainant did not amend her EEO complaint to include the denied job rotation in September 2006, and that it should not be considered within the context of the instant complaint. The Agency further argues that GW's cartoon is not sexual in nature. Finally, the Agency argues that it properly dismissed Complainant's claims 2, 3, and 4 when it accepted Complainant's complaint for investigation. On May 22, 2009, Complainant filed a Motion to Sanction, in which she argues that the Agency should be sanctioned for its conduct in the processing of her complaint. Complainant claims that the Agency purposefully delayed the processing of her complaint, and blatantly disregarded the timeframes contained in 29 C.F.R. Part 1614, most egregiously taking 11 months to issue the final agency decision from the date she requested it. She argues that the Agency did not properly conduct the informal EEO counseling stage, during which she would have been able to offer evidence, identify witnesses, and have legal representation. She argues on appeal, as she had before the AJ, that the Agency denied her a "reasonable" amount of official time to process her complaint, and that she was informed that she was limited to a total of 15 hours of official time, even during the hearing stage when she was attempting to serve and comply with time-consuming discovery requests and interrogatories. She states that the Office of General Counsel threatened to have pre-approved annual leave canceled so that it could schedule her deposition during that time period (although the leave ultimately was not canceled). Complainant also contends that the Agency's Office of General Counsel impermissibly interfered with the course of the investigation, and acted improperly, when it was permitted to question the witnesses in the complaint prior to their investigative interviews, and when it prepared GW for two hours before, and represented him during, his investigative interview. Complainant posits that because the Office of General Counsel accompanied GW to his EEO investigative interview, he was being represented by the Agency as a manager. Complainant argues that the Agency EEO Office and Office of General Counsel each knew that the Agency was engaging in impermissible behavior, citing a 2001 letter sent from the Commission's Office of Federal Operations, Federal Sector Programs, to the Agency's EEO Office which discussed the proper role of an Office of General Counsel in the EEO process. The Agency filed an Opposition to Complainant's Motion to Sanction on July 6, 2009, concurrent with its brief in opposition to the appeal. It argues that the Motion to Sanction should be denied for several reasons. The Agency notes that Complainant had raised her argument regarding official time before the AJ, and argues that she had been unable to specify how many hours she was denied that she should have instead been granted. The AJ did not issue a ruling on the official time request, but the Agency extended an offer of 30 additional hours of official time on December 12, 2007. It claims that Complainant and the AJ did not respond to this offer. As to the substitution of the management inquiry for more traditional EEO counseling, the Agency argues that Complainant had been unable to specify how exactly she was harmed by this process, noting that she was still issued a notice of rights and responsibilities and filed a formal complaint. The Agency adamantly maintains that its Office of General Counsel (OGC) had properly interviewed witnesses in the EEO investigation, and that it did not improperly influence their testimony in any way. It claims the OGC it needed to interview the witnesses before the EEO Investigator's fact finding conference so that it would "ensure that all pertinent lines of questioning are pursued since the OCI investigator will not have the benefit of previously interviewing the witnesses to learn the full scope of their personal knowledge concerning the allegations." As to her claim that she was threatened with the cancellation of her long-scheduled and pre-approved annual leave, the Agency notes that the leave was not canceled. Finally, as to the delays in processing her complaint and issuing a final agency decision, the Agency argues that Complainant knew that the AJ had planned to issue a decision granting the Agency's Motion for Summary Judgment, as per the discussion in the December 12, 2007, teleconference, and that she was advised that if she wanted a decision faster than the AJ stated he would be able to issue it, she had the option of asking for a final agency decision. That she took four months to withdraw her hearing request, was evidence, claims the Agency, that she could wait. The Agency complains that in actuality it was the party that was harmed as it did not have the benefit of a decision from an AJ on the merits of the complaint when issuing its final agency decision. It argues that Complainant "alleges no harm from this delay." On July 15, 2009, Complainant then filed a Motion to Strike the Agency's Reply to Complainant's Appeal and Response to Complainant's Motion to Sanction, arguing that each were untimely filed with the Commission. Complainant claimed that the Agency's EEO office received her Appeal Brief on May 29, 2009, as evidenced by the USPS Track and Confirm notification and signature on the certified, return receipt card, and that the 30-day period to file a response therefore expired on June 29, 2009. She argued that the Agency's Brief, dated July 6, 2009, was therefore untimely filed, and that the Agency should be held to the strict timeframes in the regulations, as she was during the processing of her complaint and hearing request. On July 27, 2009, the Agency filed an Opposition to the Complainant's Motion to Strike as well as its own Cross Motion to Dismiss the Appeal. The Agency stated that its Office of General Counsel received Complainant's Brief and Motion for Sanctions on June 3, 2009, which would have placed the 30th day on July 3, 2009, which was a Friday and was the observation of the July 4th Federal holiday. It argued that its July 6, 2009, filing was therefore timely under 29 C.F.R. § 1614.604(d). The Agency further argued in its Cross Motion to Dismiss Appeal that because Complainant did not properly serve the Office of General Counsel with her Brief and Motion, which it argued was the proper "opposing party," not the EEO Office, her entire appeal should be dismissed as improperly served on the Agency. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Motions to Strike and to Dismiss We first address the parties' contentions that the Agency's Brief in Opposition and Agency's Response to the Motion to Sanction were untimely filed with the Commission, and that Complainant's appeal was improperly served on the Agency, thereby mandating dismissal of her appeal. In view of the complicated nature of this case, we exercise our discretion to entertain the Agency's pleadings without regard to the timeliness of the filing with the Commission. We also decline to dismiss Complainant's appeal due to its alleged improper service, as we find that Complainant properly served the Agency's EEO office with her Appeal and Brief in a manner in accord with the regulations. See 29 C.F.R. § 1614.403(b). Partial dismissal of three claims Claims 2, 3, and 4 of Complainant's complaint were dismissed by the Agency. Claims 2 and 3 were dismissed as stating the same claim as that in her complaint from 2001. We affirm the Agency's dismissal of these claims. Complainant signed a settlement agreement in March 2002 which settled her complaint and withdrew those claims from the EEO process. However, the facts surrounding the filing of Complainant's complaint in March 2001 will be used as background evidence for our analysis of claim 1. Claim 4 was dismissed as a claim that alleges dissatisfaction with the processing of her current complaint. Complainant specifically claimed that the Agency did not properly engage in the informal counseling process, did not allow her legal representation during its management inquiry into the re-publication of the cartoon, and did not allow her to present witnesses at that time. We find that the Agency properly dismissed this claim. These particular issues have been addressed in the course of the processing of the complaint, as Complainant has been represented by counsel, and her witnesses were interviewed during the investigation phase. Although the Agency may not have engaged in traditional counseling, we find that this did not unduly prejudice Complainant, as she still was given her notice of EEO rights and responsibilities, was able to file a formal complaint, and as Complainant came into the EEO process well-versed in her rights as a complainant. However, we caution the Agency that the pre-complaint processing procedures found at 29 C.F.R. § 1614.105 and more fully delineated in the EEO MD-110, Chapter 2, serve to aid in developing the claims in a complaint and serve to inform a complainant of valuable information about the EEO process. Deviations from these procedures are inadvisable. The Agency's departure from procedures will be addressed more fully in the section below discussing Complainant's Motion to Sanction. Sexual harassment and harassment based on reprisal It is well-settled that harassment based on an individual's protected bases or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). In order to establish a claim of harassment under these bases, a complainant must show that: (1) she belongs to a statutorily protected class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome verbal or physical conduct related to her membership in her protected bases and/or her prior EEO activity; (3) the harassment complained of was based on her protected bases and/or prior EEO activity; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We find that Complainant has established that she is a member of two protected classes, by virtue of her sex and having engaged in prior protected EEO activity, and that she was subjected to conduct based on her membership in these two classes. Complainant not only engaged in protected EEO activity on her own behalf, but she was the Agency's first full-time EEO Specialist at MSIC. She raised issues with management regarding GW's "Trail of Beers" and the Christmas Social. By doing so, she drew the ire of GW and many employees at MSIC who believed they could no longer wish each other "Merry Christmas," even though this is not what she had advocated. She was labeled the "EEO Gestapo," and GW's "Lord of the Laser" cartoon depicted her as "Ms. E.E.O'Doofus." Complainant testified that the Director told her that that GW "resents the EEO system." GW's cartoon used sexual imagery and language in reference to Complainant, which many co-workers recognized as such, and recognized that Complainant was the individual it was intended to depict. Complainant also argued that GW had published a "parable" which insinuated that her husband was lucky to be losing his vision as he would no longer have to look at her. Additionally, a box of fliers was delivered to her office with the word "Dufus" written in black marker on the box. The totality of this behavior implicates both Complainant's EEO activity and her sex. Although the Agency disputes that Complainant was depicted in the cartoon, and disputes the sexual nature of the cartoon, we find their arguments to be unpersuasive. A review of the "Lord of the Laser" cartoon, keeping in mind the context in which it was drawn, the relationship among GW, Complainant, and the other employees at MSIC, and the testimony of co-workers about how MSIC employees viewed the cartoon, is supportive of this conclusion. Co-worker 1 (CO-1) testified that, "It's obvious who they [the characters] are," in the cartoon and "it's obvious" that it's a "a male penis, okay shooting it like he's shooting, you know, at someone. And I think he said EEO Dufus, Ms. EEO Dufus or something like that in the cartoon kind of thing." (OCI transcript, pp. 178-180). Co-worker 2 (CO-2) testified that, "We only had one EEO person at that time and the caricature was such that it was pretty hard not to miss it if you had any inkling of what it was. I mean, everybody that I've seen that's seen the cartoon, immediately that's what they see." (OCI transcript, p. 199). He also stated that, "I heard about it and it became a discussion again around the building a little bit and people talked about it." (OCI transcript, p. 201). There is no question that Complainant found this conduct to be unwelcome. She stated in her Brief that, since her return to the Agency in May 2003, she avoids EEO activities at MSIC, tends to stay in her office, avoids the cafeteria where she would be likely to encounter GW and friends of GW, and she tries to avoid any contact with GW. Although the Agency did not accept the issue for investigation, Complainant also argued in her brief that employees in the workplace are openly hostile to her, which has had the effect of denying her a rotational assignment to another office because the employees in that office did not wish to work with her. We find that the harassment had the purpose or effect of unreasonably interfering with Complainant's work performance and/or creating an intimidating, hostile, or offensive work environment. The Agency maintains that the re-publication of the "Lord of the Laser" cartoon on GW's public Internet website removes it from a connection to the workplace, and that it therefore cannot have interfered with Complainant's ability to function at work. The Agency also argues that Complainant had voluntarily gone to GW's website and opened the link to the cartoon, thereby exposing herself to the content. However, we find that the hostile environment consisted of more than just Complainant's exposure to the content of GW's website. GW announced his website at an EEO training class in September 2005, thereby re-introducing it into the workplace, after which many employees apparently went back to their desks and pulled up the site to view its content. Many then discussed it in the workplace. There is testimony in the record from CO-2 that, after GW announced his website, he "heard about it up and down the hall." (OCI transcript, pp. 201-202). The Agency further maintains that the actions of GW were not reasonably likely to deter a complainant or others from engaging in protected EEO activity, and that there was no evidence to support the proposition that GW published his cartoon to dissuade Complainant from participating in EEO activities. (Agency's Brief, p. 8). However, CO-1 testified that she had told a co-worker that she had decided against considering a position in the IG (Inspector General) office: "And I said I wouldn't be an IG, just like Brenda, afraid the same thing would happen to me that's happened to Brenda, you know, because she's had a tough time since she was the EEO counselor." (OCI transcript, p. 180). We find that the hostility to the EEO process shown by GW through the cartoon, the "parable" on his website, and his other writings is sufficient to demonstrate that he engaged in these actions in order to harass Complainant for her role in the EEO program, and for engaging in protected activity. Any other employee who might have been disposed to make similar objections to offensive material, to work to increase diversity and tolerance at MSIC, or to volunteer to be a collateral-duty or full-time EEO Counselor or Specialist would surely think twice before deciding if they themselves would want to be subjected to the same treatment. We additionally find that Complainant need not show that she was subjected to sexual harassment in order to establish that she was subjected to a pattern of harassment based on her sex and prior EEO activity. The Agency mistakes Complainant's burden here, and is attempting to impose an additional burden on what she is legally required to show by conflating the two types of harassment. Aspects of the unwelcome conduct perpetuated by GW are sexual as well as hostile to the EEO system, which we find sufficient to establish Complainant's claim. Liability of the Agency As to the element (5) of a claim of harassment, we now turn to whether there is a basis for imputing liability to the Agency for GW's actions. Complainant argued in her Brief on appeal that GW should be considered a supervisor for the purposes of the Agency's potential liability. She noted that he is a Team Leader, and that the Agency's preparation of his testimony before his investigative interview implied his status as a manager. (Complainant's Brief, p.1). The Agency agued in its Brief in opposition to Complainant's appeal that GW should be considered a co-worker of Complainant's, as he was never in any position to take any sort of adverse personnel action against Complainant. (Agency's Brief, p. 7). We find that GW should be considered a co-worker for the purposes of analysis of the Agency's liability, as he did not have the authority to take tangible employment actions against Complainant. An agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. § 1604.11(d). Whether the agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996). "Appropriate corrective action" is a response that is reasonably calculated to stop the harassment. When an employer becomes aware of alleged harassment, the employer has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996). Complainant was subjected to harassment as perpetuated by a co-worker, GW, and she complained to Agency management about the dissemination of GW's website address in the September 2005 EEO class. Complainant raised the matter with the Director on October 24, 2005. She alleged that the re-introduction of the "Lord of the Laser" cartoon created a hostile work environment, and that the Agency failed to take immediate and appropriate remedial measures. We find that the Agency did not engage in immediate corrective action when it took two months to block GW's website from viewing in the workplace. Although the Agency claimed that it took "prompt" corrective action, it has not supplied a date, or any documentation in the record, which shows when it actually took action to block the website. Complainant asserted that it took the Agency two months to block employees from being able to view GW's website from Agency computers; there is no evidence of record to the contrary. In the absence of any justification for the Agency's delay, we find that taking two months to block GW's website on MSIC computers is not prompt, corrective action. Denial of official time to process her EEO complaint Under 29 C.F.R. § 1614.605(b), a complainant "shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information." As further delineated in EEO MD-110, Chapter 6, § VIII.C., "reasonable" is defined as "whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information." Complainant argued before the AJ that the Agency had inappropriately limited her to a total of 15 hours of official time to process her complaint. She framed the issue as one of retaliation by the Agency when it did not allow her to claim more hours than this during the course of the discovery period. The Agency argued before the AJ that Complainant was incorrect in filing an amendment to her complaint in order to address this issue, citing sections of EEO MD-110 to support its contention that Complainant should have raised the issue with Agency officials to obtain relief. Complainant responded that she had raised the matter of official time with the appropriate Agency officials and was advised that she was limited to 15 hours. Complainant claimed that the Office of General Counsel representative informed her that it was an Agency "standard operating procedure" that only 15 hours of official time were allowed to work on EEO complaints, although she was never shown this policy in writing, despite her requests for a copy of it. The AJ ordered Complainant to submit an accounting of the amount of time she claimed she was inappropriately denied. Although there is an indication that Complainant did submit this to the Agency, the record before the Commission at this time does not contain this information. Complainant need not establish that the Agency denied her official time as a form of reprisal. The Commission has held that allegations of per se violations of 29 C.F.R. § 1614.605(b) should not be processed in accordance with 29 C.F.R. § 1614.108 because the focus is not on motivation, but rather on the justification to determine whether the complainant was denied a reasonable amount of requested official time. See Edwards v. United States Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996). We note that an internal agency policy, such as Complainant alleges existed here, which places a strict cap on the number of hours a complainant can spend on an EEO complaint would violate 29 C.F.R. § 1614.605(b); the Agency is advised to analyze all requests for official time on a case-by-case basis. We find that Complainant should have been granted more than 15 hours in total to process her complaint. A case of this complexity, in which there was a hearing request and extensive discovery, would warrant far more time than that. Complainant asserted in her brief to the AJ on August 20, 2007, that she could account for the hours she expended working on her complaint. On December 12, 2007, the Agency extended an offer of 30 additional hours of official time to Complainant. The record does not indicate that Complainant either accepted or rejected this offer. On remand, we find that Complainant should submit to the Agency an accounting of the hours to which she claims she is entitled. The Agency shall grant Complainant the appropriate compensation for her time, whether in the form of compensatory time, restoration of annual leave, or administrative time, as applicable, for the reasonable amount of hours taken by Complainant to work on her complaint. Role of the Office of General Counsel EEO MD-110, Chap. 1, § III. (Nov. 9, 1999) provides, in relevant part: Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program. Generally speaking, the EEO office at an agency is responsible for the neutral counseling and investigation of the EEO complaint, and for developing an impartial and appropriate factual record from which a decision maker can render a decision on the allegations of discrimination. Once the process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency's Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. During the informal counseling stage and the investigation into the accepted issues of the complaint, however, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator. In the case of Rucker v. Department of the Treasury, EEOC Appeal No. 0120082225 (February 4, 2011), request for reconsideration denied, EEOC Request No. 0520110343 (April 26, 2011), the complainant claimed that the agency's Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management affidavits before submission to the EEO investigator. We advised the agency that "it should be careful to avoid even the appearance that it is interfering with the EEO process." In this case, Complainant claims that the Office of General Counsel impermissibly interfered with the development of the record, and acted improperly, when it was permitted to question the witnesses in the complaint prior to their investigative interviews. She argued that the Office of General Counsel effectively "represented" GW and his interests during the investigation when it prepared GW for two hours before, and represented him during, his investigative interview. She claims that the Office of General Counsel threatened to cancel her pre-approved annual leave when scheduling her deposition toward the end of the discovery period, in an effort to intimidate her and retaliate against her. According to Complainant, she and her attorney offered to extend the discovery period, but the Agency declined. The Agency's barely-concealed disdain for Complainant is evident in its filings before this Commission on appeal and before the AJ. It is one thing for an Office of General Counsel to take seriously its duty to zealously represent its client agency in the course of defending an EEO complaint. It is another thing entirely to use the power of its office to intimidate a complainant and her witnesses, and to potentially affect the course of the investigation by pre-interviewing witnesses during the EEO investigation. The Agency's circular logic that it needed to interview the witnesses before the EEO investigator did, because the investigator did not know what the witnesses were going to testify to, is a self-serving justification for its actions. The EEO investigator is responsible for the development of an impartial record. It is in this role that the investigator would pursue the appropriate line of questioning of each witness. An agency representative should not step into the process until it becomes adversarial, either through the request for a hearing or the filing of an appeal. We find that the Agency acted with gross impropriety in this case. Motion for Sanctions Complainant argued in her Motion to Sanction that the Agency should be sanctioned for its conduct in the processing of her complaint. Complainant claims that the Agency purposefully delayed the processing of her complaint, and blatantly disregarded the timeframes contained in 29 C.F.R. Part 1614, most egregiously taking nearly 11 months to issue the final agency decision from the date she requested it. She argued that the Agency did not properly conduct the informal EEO counseling stage, and that she was denied official time (as discussed above). She also argued that the conduct of the Office of General Counsel when interviewing witnesses before they testified to the EEO investigator had affected the investigation. Complainant argued that, based on the Commission's decisions in Lomax v. Department of Veterans Affairs,2 DaCosta v. Department of Education,3) Reading v. Department of Veterans Affairs,4 and Royal v. Department of Veterans Affairs,5 the Agency should be sanctioned for failing to comply with the timeframes in 29 C.F.R. Part 1614. The Agency was required to issue a final agency decision within 60 days of the AJ's dismissal of Complainant's hearing request and his remand for a decision. It took the Agency nearly 11 months to do so, despite repeated requests from Complainant for the final decision. Complainant also argued that the Office of General Counsel interfered with the EEO process by attempting to intimidate her and her witnesses, denying her official time, threatening to cancel her leave, coaching and prepping GW, representing GW in his investigatory interview, and interviewing witnesses before they gave testimony to the investigator. She claimed that these actions, taken as a whole, would deter a reasonable person from pursuing a complaint in the EEO process, and that the Agency's Office of General Counsel had engaged in reprisal against her. The Agency opposed Complainant's Motion to Sanction, and argued that, although Complainant argued before the AJ that she had been denied a reasonable amount of official time to prosecute her complaint, she failed to articulate just how many hours she had requested and been denied. It further argued that she had not identified how she had been harmed by the substitution of the management inquiry for the informal EEO counseling process. It also argued that it had not improperly influenced the testimony of any of the witnesses during the investigation and that when attempting to schedule Complainant's deposition it was "simply trying to exercise its rights in defending against the complaint." We find that the Agency's actions warrant a sanction in this instance. The Commission found in the case of Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009) that delays in completing the Report of Investigation beyond the 180-day regulatory time frame warranted a sanction. In Royal, we held that "the agency's delay in completing the investigation within the 180-day regulatory period is no small non-compliance matter." Similarly, in this case, the Agency took nearly 11 months to issue a final agency decision on the record once Complainant withdrew her hearing request. Incredibly, the Agency argued that it was the aggrieved party, harmed by Complainant's withdrawal of her hearing request, presumably because it did not have the benefit of an AJ's decision to implement or reject, and instead had to write a final decision on the record. We find the Agency's failure to comply with either the spirit or the letter of the specific directives contained in the 29 C.F.R. Part 1614 regulations to be inexplicable and inexcusable. Our regulations require agency action in a timely manner at many points in the EEO process. Compliance with these timeframes is not optional. As the Commission stated in Royal v. Department of Veterans Affairs, supra, "the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." We further noted in Royal that when weighing the factors pertinent to tailoring an appropriate sanction, the effect on the integrity of the EEO process and protecting that process, is of "paramount" importance to the "Commission's ability to carry out its charge of eradicating discrimination in the federal sector." The Agency should consider itself on notice that future noncompliance with our regulations could subject it to the imposition of more stringent sanctions than those we impose here. In the case of Talahongva-Adams v. Department of Interior, EEOC Appeal No. 0120081694 (May 28, 2010), we found that the agency's failure to comply with the 29 C.F.R. Part 1614 regulations and failure to adhere to the process for properly processing a complaint warranted a sanction. In addition to the default judgment levied by the AJ in that case, we found that the agency's failure to properly implement the AJ's decision, to submit the complaint file to the Commission on appeal, or even to submit a brief to the Commission on appeal in a manner in accordance with the regulations, had a serious effect on the integrity of the EEO process. In that case, we ordered the EEO personnel at the Agency to undergo training in their responsibilities in the EEO process. We find that a similar sanction is warranted here. The EEO Office's and Office of General Counsel's disregard for the basic principles of neutrality and fairness which are required to fairly adjudicate an EEO complaint is clear. The actions of the Office of General Counsel in particular evidence contempt and disrespect for the EEO process, and its pervasive presence in the investigative process casts doubt on whether the investigation was fair and impartial. Therefore, we find that it would benefit these Agency personnel to undergo training in the EEO process, and the roles and responsibilities of an agency EEO office and of its legal representative, so that the Agency may better carry out the shared mission of all federal agencies and the Commission to eradicate discrimination in federal employment. CONCLUSION Based on a thorough review of the record and the contentions of both parties on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision, and REMAND Complainant's complaint for further processing in accordance with our Order below. ORDER The Agency is ORDERED to implement the following remedial action: 1. Within fifteen (15) days of the date on which this decision becomes final, commence a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the discrimination, and shall afford Complainant an opportunity to establish a causal relationship between the discrimination and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages to which she is entitled for that portion of the discrimination which resulted from her sex or in reprisal for her previous EEO activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new agency decision awarding compensatory damages to Complainant within sixty (60) days of the date on which Complainant completes her submission of evidence. 2. Within sixty (60) days of the date on which this decision becomes final, the Agency shall grant Complainant appropriate compensation for her time, whether in the form of compensatory time, restoration of annual leave, or administrative time, as applicable, for the reasonable amount of hours taken by Complainant to work on her complaint. A copy of the Agency's determination of the number of hours of time to be restored to Complainant and/or for which she will be provided compensation, and the reimbursement action, if necessary, shall be provided to the Compliance Officer as set forth below. 3. Within ninety (90) days of the date this decision becomes final, provide at least eight (8) hours of training to the responsible management officials at MSIC regarding their responsibilities under EEO laws, with a special emphasis on the harassment. 4. Consider taking appropriate disciplinary action against the responsible management officials at MSIC. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. Within ninety (90) days of the date this decision becomes final, provide at least four (4) hours of training to the EEO management officials and to personnel in the Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of an Office of General Counsel in the EEO process. 6. Post a notice of the finding of discrimination in accordance with the below-entitled paragraph, "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0900) The Agency is ordered to post at its MSIC facility in Redstone Arsenal, Alabama copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat June 6, 2014 Date 1 This correspondence was docketed as EEOC Appeal No. 0120084008. Complainant's timely appeal of the Agency's subsequently-issued final agency decision was docketed as EEOC Appeal No. 0120092339 (June 10, 2010), which was closed as a duplicate appeal. 2 EEOC Appeal No. 0720070039 (Oct. 2, 2007), req. for recon. denied, EEOC Request No. 0520080115 (Dec. 26, 2007). 3 EEOC Appeal No. 01995992 (Feb. 25, 2000). 4 EEOC Appeal No. 07A40125 (Oct. 12, 2006). 5 EEOC Appeal No. 0720070045 (Sept. 10, 2007), req. for recon. denied, EEOC Request No. 0520080052 (Sept. 25, 2009). ------------------------------------------------------------ ------------------------------------------------------------	[ "Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)", "Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997)", "Taylor v. Dep't. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992)", "Owens v. Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1...	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81	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082983.txt	0120082983.txt	TXT	text/plain	29,631	Bruce E. Smith, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.	June 25, 2008	Appeal Number: 0120082983 Background: At the time of events giving rise to this complaint, complainant worked as a facilities maintenance specialist, GS-9, at the agency's Naval Facilities Engineering Command facility in Norfolk, Virginia. On March 9, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the basis of race (Black) and in reprisal for prior protected EEO activity under Title VII when: 1. Complainant's first-line supervisor (S) assigned him to an electrical job he had not done in 13 years without an experienced helper in an attempt to set complainant up for failure; 2. S assigned him to take out trash and sweep; 3. S accused him of going to see an EEO Counselor without permission; 4. S tried to check complainant's cellular phone to see if he had called an EEO counselor without permission; 5. S threatened to dock complainant's pay if he attempted to contact an EEO counselor; 6. On three dates in January 2007, S placed complainant on AWOL status; 7. On November 20, 2006, complainant's third-line supervisor (S3) reassigned him from the Facilities Sustainment, Code PRL 312, to the Facilities Sustainment Project, Code PRL313; and 8. The agency failed to select complainant for reassignment to the position of Production Controller (Construction), GS-1152-09. In an investigative affidavit, complainant alleged that he was subjected to harassment when S assigned him to the complicated electrical job of installing a lathe1 machine and assigned an inexperienced apprentice to assist him, who he had to watch constantly to ensure that the apprentice did not hurt himself. He stated that he thought that S should have given the electrical job to a more experienced electrician, and S set him up for failure. Complainant further alleged that on December 19, 2006 and January 30, 2007, S assigned him to sweep and empty trash, which were "demeaning" and "denigrating" tasks. Deposition Hearing Transcript (HT), p. 37. Complainant further alleged that S "docked" his pay for three hours on January 10, 2007; 36 minutes on January 24, 2007; and, six minutes on January 25, 2007. HT, p. 48. Additionally, S3 reassigned him from the Emergency Services Department (ESD) to the Minor Works Department (MWD). At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that complainant did not prove that he was subjected to discrimination or harassment as alleged. Complainant did not submit a statement on appeal, and the agency requests that we affirm its final decision. Legal Analysis: the Commission MODIFIES the agency's final decision. ISSUES PRESENTED 1. Whether the agency properly found that complainant was not subjected to discrimination and harassment on the bases of race and reprisal when it failed to select him for the position of Production Controller; assigned him to take out trash and sweep the floor; set him up for failure by assigning him to an electrical job he had not done in 13 years without an experienced helper; reassigned complainant to the Facilities Sustainment Project, Code PRL313; and, placed him in Absent Without Leave (AWOL) status. 2. Whether complainant's first-line supervisor committed a per se violation of EEO regulations by interfering with the EEO process. BACKGROUND At the time of events giving rise to this complaint, complainant worked as a facilities maintenance specialist, GS-9, at the agency's Naval Facilities Engineering Command facility in Norfolk, Virginia. On March 9, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the basis of race (Black) and in reprisal for prior protected EEO activity under Title VII when: 1. Complainant's first-line supervisor (S) assigned him to an electrical job he had not done in 13 years without an experienced helper in an attempt to set complainant up for failure; 2. S assigned him to take out trash and sweep; 3. S accused him of going to see an EEO Counselor without permission; 4. S tried to check complainant's cellular phone to see if he had called an EEO counselor without permission; 5. S threatened to dock complainant's pay if he attempted to contact an EEO counselor; 6. On three dates in January 2007, S placed complainant on AWOL status; 7. On November 20, 2006, complainant's third-line supervisor (S3) reassigned him from the Facilities Sustainment, Code PRL 312, to the Facilities Sustainment Project, Code PRL313; and 8. The agency failed to select complainant for reassignment to the position of Production Controller (Construction), GS-1152-09. In an investigative affidavit, complainant alleged that he was subjected to harassment when S assigned him to the complicated electrical job of installing a lathe1 machine and assigned an inexperienced apprentice to assist him, who he had to watch constantly to ensure that the apprentice did not hurt himself. He stated that he thought that S should have given the electrical job to a more experienced electrician, and S set him up for failure. Complainant further alleged that on December 19, 2006 and January 30, 2007, S assigned him to sweep and empty trash, which were "demeaning" and "denigrating" tasks. Deposition Hearing Transcript (HT), p. 37. Complainant further alleged that S "docked" his pay for three hours on January 10, 2007; 36 minutes on January 24, 2007; and, six minutes on January 25, 2007. HT, p. 48. Additionally, S3 reassigned him from the Emergency Services Department (ESD) to the Minor Works Department (MWD). At the	Bruce E. Smith, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency. Appeal No. 0120082983 Agency No. 07-40085-00236 DECISION On June 25, 2008, complainant filed an appeal from the agency's March 27, 2008 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the agency's final decision. ISSUES PRESENTED 1. Whether the agency properly found that complainant was not subjected to discrimination and harassment on the bases of race and reprisal when it failed to select him for the position of Production Controller; assigned him to take out trash and sweep the floor; set him up for failure by assigning him to an electrical job he had not done in 13 years without an experienced helper; reassigned complainant to the Facilities Sustainment Project, Code PRL313; and, placed him in Absent Without Leave (AWOL) status. 2. Whether complainant's first-line supervisor committed a per se violation of EEO regulations by interfering with the EEO process. BACKGROUND At the time of events giving rise to this complaint, complainant worked as a facilities maintenance specialist, GS-9, at the agency's Naval Facilities Engineering Command facility in Norfolk, Virginia. On March 9, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the basis of race (Black) and in reprisal for prior protected EEO activity under Title VII when: 1. Complainant's first-line supervisor (S) assigned him to an electrical job he had not done in 13 years without an experienced helper in an attempt to set complainant up for failure; 2. S assigned him to take out trash and sweep; 3. S accused him of going to see an EEO Counselor without permission; 4. S tried to check complainant's cellular phone to see if he had called an EEO counselor without permission; 5. S threatened to dock complainant's pay if he attempted to contact an EEO counselor; 6. On three dates in January 2007, S placed complainant on AWOL status; 7. On November 20, 2006, complainant's third-line supervisor (S3) reassigned him from the Facilities Sustainment, Code PRL 312, to the Facilities Sustainment Project, Code PRL313; and 8. The agency failed to select complainant for reassignment to the position of Production Controller (Construction), GS-1152-09. In an investigative affidavit, complainant alleged that he was subjected to harassment when S assigned him to the complicated electrical job of installing a lathe1 machine and assigned an inexperienced apprentice to assist him, who he had to watch constantly to ensure that the apprentice did not hurt himself. He stated that he thought that S should have given the electrical job to a more experienced electrician, and S set him up for failure. Complainant further alleged that on December 19, 2006 and January 30, 2007, S assigned him to sweep and empty trash, which were "demeaning" and "denigrating" tasks. Deposition Hearing Transcript (HT), p. 37. Complainant further alleged that S "docked" his pay for three hours on January 10, 2007; 36 minutes on January 24, 2007; and, six minutes on January 25, 2007. HT, p. 48. Additionally, S3 reassigned him from the Emergency Services Department (ESD) to the Minor Works Department (MWD). At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that complainant did not prove that he was subjected to discrimination or harassment as alleged. Complainant did not submit a statement on appeal, and the agency requests that we affirm its final decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Claims 1, 2, 6, 7, and 8: Harassment and Disparate Treatment In order to prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). To establish a claim of hostile environment harassment, complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). For purposes of analysis, we assume arguendo that complainant established a prima facie case of discrimination for claims 1, 2, 6, and 7. Nonetheless, we further find that the agency provided legitimate, non-discriminatory explanations for each alleged action. Specifically, S stated that he did not set complainant up for failure and assigned complainant to do the lathe project because complainant was previously a WG-10 electrician, and the task complainant was assigned to do was electrical. S further stated that complainant's helper was assigned to him because he was the only helper in the crew. He stated that complainant's helper has been assigned to work with other employees, including supervisors. S further stated that he assigned complainant to sweep and take out the garbage because it was complainant's turn to do these tasks. He stated that all trades clean up the facility, including carpenters, painters, and electricians. Additionally, S stated that he charged complainant AWOL on January 10, 2007 because complainant refused to do an assignment that he directed him to perform. He stated that he charged complainant AWOL on January 24, 2007 because he observed complainant leave his apprentice without permission from management so that he could drive another employee to work. S also stated that he charged complainant AWOL on January 25, 2007, because complainant left his work station and told S to do an assignment by himself. S3 stated that the ESD works on emergency tickets and service tickets, and the position description in ESD is negotiated through the union if an employee stands watch. He stated that complainant is a GS employee, but was detailed to a WG position in ESD. He further stated that one of the duties in ESD is to stand watch, but the American Federation of Government Employees (AFGE) maintained that as a GS employee, complainant could not stand watch, except for after hours and weekends. S3 stated that complainant could not meet the requirements of his ESD detail positions because he could not stand watch; therefore, he transferred him to the MWD, which does not require employees to stand watch. In addition, a Human Resources Specialist stated that the AFGE did not want its employees standing watch. The Lieutenant stated that he was the recommending official for the Production Controller position and evaluated the applicants for the position by reviewing the applicants' Knowledge, Skills, and Abilities (KSA's) responses and resumes. He stated that he scored each applicant on a scale from one to five in six categories. He stated that one applicant received the highest score of 23, and complainant and two other applicants received a score of 22. He stated that he recommended the applicant with the score of 23 (Black) for the position because he had the highest score. He further stated that he selected another applicant (White) who scored 22 for the position because the applicant met the agency's need for a shop planner scheduler (SPS) and had experience at the Oceana and Dam Neck facilities. He stated that he had no knowledge of complainant's prior EEO activity and did not know complainant when he made the selection. The Lieutenant further stated that although agency documents reflected that he was the selecting official for the positions, he forwarded his recommendations to the "business line" so that they could formally make the selections. HT, p. 389. The Navy Public Works Business Line Coordinator stated that he was aware of complainant's prior EEO activity because he was the named responsible management official in his prior complaint. Regarding the non-selection, he stated that he and the Business Line did not evaluate the applicants and only ensured that the criteria used to make the selections were equitable. He stated that the business line only reviewed the process, not the merits of the Lieutenant's selections. Upon review, we find that complainant failed to prove that the agency's explanations were pretext for unlawful discrimination. Thus, we find that the agency properly found no discrimination for claims 1, 2, 6, and 7. With respect to claim 8, we note that although the business line reviewed the criteria used to make the selections for the Production Controller positions, the Lieutenant made the selections. At the time that he made the selection, the Lieutenant was unaware of complainant's race or prior EEO activity. Moreover, one of the two selectees is African-American, which undermines complainant's claim that he was not selected because of his race. Thus, we find that complainant failed to establish a prima facie case of race or reprisal for claim 8. Further, we find that the agency provided a legitimate, non-discriminatory reason for its selections. Specifically, the Lieutenant stated that complainant was not selected for the position because a selectee met the agency's need for a shop planner scheduler (SPS) and had experience at the Oceana and Dam Neck facilities. Complainant failed to prove that the agency's non-discriminatory explanations were pretext for unlawful discrimination. Thus, we find that the agency properly found no discrimination with respect to claim 8. Regarding complainant's hostile work environment claim, we find that complainant failed to prove that any of the alleged actions occurred because of his race or prior EEO activity. Further, we do not find that the alleged actions were sufficiently severe or pervasive to constitute a hostile work environment. Claims 3, 4, and 5: Interference with the EEO process An employee may suffer unlawful retaliation if his supervisor interferes with his EEO activity. See Binseel v. Department of the Army, EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Department of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Department of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005). In this case, complainant alleged that when he told S that he had an appointment to meet with the EEO counselor, S stated that he would make the appointments for complainant to see an EEO counselor. He stated that S told the EEO counselor, "[Complainant] has a lot of work to do. You've got to come to the shop [to meet with complainant]." HT, p. 42. Complainant further stated that his previous supervisor allowed him to take official time to go and meet with the EEO counselor, and he informed the EEO counselor that S would not allow him to go offsite to meet with the counselor. He stated that after he told the counselor that he was uncomfortable with S arranging his meetings with the counselor at the work facility, the counselor gave complainant "an official signed paper" that he hoped would persuade S to let complainant go offsite to meet with the counselor. HT, p. 44. Complainant stated that when he presented the paper to S, S stated, "Oh, you've been to [the Naval Station EEO] office in Norfolk." HT, p. 45. Complainant stated that when he denied going to the Norfolk Naval Station EEO office, S said, "Yes you have. You've been off - this is proof you've been to Norfolk. I'm going to have to dock your pay, AWOL. You have to - you went there without my permission." HT, p. 46. Additionally, complainant stated that S asked to see his cellular phone, and stated, "Let me see your phone, you know. I can prove that you called that person [EEO counselor], right, went to Norfolk. That's how you got this paper right here." HT, p. 45. Complainant stated that he did not allow S to check his cellular phone. S stated that after complainant told him that he had met with an EEO counselor, he told complainant, "[Complainant], instead of, you know, going to Norfolk and wasting all that travel time, to let me know, I'll make the appointment for you and bring the guy down here." HT, 163. S stated that he did not want the "extra time" it took for complainant to travel to the offsite EEO office to affect the work that needed to be done. HT, p. 164. S further stated that he made several appointments for complainant to meet with the EEO counselor in the general foreman's office "behind a locked door." HT, p. 164. "And as soon as he [complainant] made me aware that he needed an appointment, I set it up at [the EEO counselor's] earliest convenience." HT, p. 164. S maintained that the agency's policy is for supervisors to set up EEO appointments with employees who want to meet with a counselor. HT, p. 165. Additionally, S stated that when he saw that complainant had paperwork from an EEO counselor, he asked him where he obtained the paperwork, and complainant denied that he had been to the counselor. He further stated the following: I said, you know, "Have you gone on any EEO business? He said, "No." I said, "Have you been calling the EEO?" I said, "Well, you are going to have to let me see your cell phone to see if you have." He said, "No." And I let it go. HT, p. 166. S further stated that complainant asserted that he had the right to see an EEO counselor whenever he wanted to see the counselor. S stated that he told complainant that although he had the right to see an EEO counselor, he must set up the appointment to see the counselor for complainant during work time. HT, p. 167. He stated that he told complainant that if he left work without permission, his pay would be docked because he would be AWOL. S stated that he did not dock complainant's pay for attempting to meet with an EEO counselor. Upon review of this matter, we find that S's acknowledged actions violated the letter and spirit of EEO Regulations and constitute a per se interference with the EEO process. By requiring complainant to inform him anytime complainant needed to meet with an EEO counselor, S impermissibly injected himself into the EEO process. Although S maintained that he needed to schedule employees' appointments with EEO counselors to ensure that work time was maximized and travel time to the offsite EEO office was limited, we are persuaded that S required complainant to always go through him before contacting an EEO counselor. For instance, when complainant produced documents from the EEO office, S interrogated complainant about his past EEO activity and asked to inspect his cellular phone so that he could determine if complainant had contacted an EEO counselor without his knowledge. Moreover, S maintained that the agency's policy is for supervisors to schedule all appointments with EEO counselors for employees. S clearly acted as if he were entitled to arrange all of complainant's interactions with an EEO counselor. Thus, we conclude that S's actions went far beyond a legitimate need to verify complainant's whereabouts during work hours. We note that we have held that there may be special, limited circumstances wherein supervisors may permissibly make alternative arrangements for employees to meet with EEO counselors. For instance, in Fermin Salas v. Department of the Interior, EEOC Appeal No. 0120065120 (June 26, 2009), the Commission held that a supervisor did not interfere in the EEO process when he informed an employee that he must attend training critical to his position but would be provided with access to an EEO counselor during the time period that he completed the training. Unlike in Salas, there were no special circumstances here that made it necessary for S to arrange all of complainant's meetings with the EEO counselor in perpetuity. In this case, S established himself as the permanent gatekeeper by which employees must pass before they contact an EEO counselor, which undermined complainant's right to consult a counselor anonymously. 29 C.F.R. § 1614.105(g). S further entangled himself into complainant's EEO activity when he aggressively interrogated complainant about his past contact with an EEO official and attempted to inspect his cellular phone to determine if complainant had contacted the EEO counselor without his knowledge. This excessive entanglement with employees' EEO activity is reasonably likely to deter employees from engaging in the EEO process. See John B. Whidbee v. Department of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005) (Commission found reprisal when supervisor informed all employees that if they wanted to file an EEO complaint, they needed to discuss it with him first); see also Robinson v. Shell Oil Co., 117 S.Ct. 843, 848 (1997) (a primary purpose of anti-retaliation provisions is maintaining unfettered access to statutory remedial mechanisms). Thus, we conclude that S unlawfully retaliated against complainant by interfering with his EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's finding of no discrimination with respect to claims 1, 2, 6, 7, and 8. The Commission finds that the FAD is REVERSED with respect to claims 3, 4, and 5 because we conclude that the agency engaged in a per se violation of the EEO regulations. In order to remedy the violation, the agency shall take the actions specified in the following Orders. ORDER The agency is ordered to take the following remedial actions: 1. The agency shall provide EEO training to all managers at Naval Facilities Engineering Command in Norfolk, Virginia. The training shall place special emphasis on the agency's obligation to prevent retaliation and interference with the EEO process. The Commission does not consider training to be a disciplinary action. 2. The agency shall consider taking disciplinary action against the responsible supervisor (S). The agency shall report its decision within thirty (30) calendar days. If the agency decides to take disciplinary action, it shall identify the actions taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 3. The agency shall undertake a supplemental investigation to determine complainant's entitlement to compensatory damages under Title VII. The agency shall give complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the agency shall issue a final agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 4. The agency and its management shall cease and desist from requiring that all contact with EEO counselors must be arranged through management officials. 5. The agency shall post the attached notice, as detailed below. The agency is further directed to submit a report of compliance, as is provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order has been implemented. POSTING ORDER (G0900) The agency is ordered to post at the Naval Facilities Engineering Command in Norfolk, Virginia copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208) 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 (M1208) 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), 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 (T0408) 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 (Z1008) 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 _____02/16/10_____________ Date 1 A lathe is a machine for shaping a piece of material, such as wood or metal, by rotating it rapidly along its axis while pressing a fixed cutting or abrading tool against it. The American Heritage Dictionary of the English Language, Fourth Edition (2000). ?? ?? ?? ??	[ "Binseel v. Department of the Army, EEOC Request No. 05970584 (October 8, 1998)", "Marr v. Department of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996)", "Whidbee v. Department of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005)", "Fermin Salas v. Department of the Interior, EEOC Appeal No. 0120...	[ -0.07388807833194733, 0.09013547003269196, 0.003305444261059165, 0.05440439656376839, -0.0031795846298336983, 0.04823923483490944, 0.011150128208100796, 0.005805800203233957, -0.06737396121025085, 0.069066122174263, -0.009060891345143318, -0.022265780717134476, 0.023028073832392693, 0.0040...
82	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162639.pdf	0120162639.pdf	PDF	application/pdf	62,187	Jacinto Q.,1 Complainant, v. Janet Dhillon , Chair, Equal Employment Opportunity Commission, Agency.	July 11, 2016	Appeal Number: 0120162639 Background: At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On October 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability and in re prisal for prior protected EEO activity. In its Notice of Acceptance, the Agency defined the accepted issues as follows: (1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14-OFP-1095443- 085-TMD, which advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington; (2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14- OFP-1183231- 132-TMD, which advertised vacant positions located in Miami, Florida, and Philadelphia, Pennsylvania; and (3) unknown EEO management and Human Resource officials, including a Human Resources Specialist (HRS), (a) conspired to manipulate the recruitment and staffing for ADR Mediator positions; (b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office; (c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office to the Philadelphia, Pennsylvania, office; and (d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities. Further, the Agency noted that Complainant also claimed that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when unknown EEOC management officials authorized and admin istered EEO counseling designed to intimidate and deter him from filing a formal EEO complaint. The Agency stated that it would process the claims concerning the processing of his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110). Specifically, Complainant alleged that: (1) the EEO Counselor failed to identify herself or her role when she initially contacted Complainant, causing an unnecessary delay in the start of EEO counseling; 3 0120162639 (2) the EEO Counselor initially refused to respond via e -mail to Complainant’s specific inquiries regarding his initial contact; (3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing; (4) the EEO Counselor recorded Complainant’s claims and bases incorrectly; (5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry ; (6) the EEO Counselor failed to identify the name and title of any involved EEOC management official or any documents reviewed during EEO counseling; (7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the EEOC responsible management officials or the reasons why the positions were cancelled and moved to another location; and (8) the EEO Counselor failed to identify any resolving official or any attempts at resolutio n during the counseling; Complainant subsequently also alleged that that the Agency subjected him to reprisal for the instant complaint by not framing his allegations accurately in the Notice of Acceptance. On April 10, 2014, the Agency announced six vacancies for GS -0301- 12 ADR Mediator positions (Job Announcement No. D14- OFP-1095443- 085-TMD). The vacancy announcement listed the following vacancy locations: Kansas City, Kansas; Baltimore, Maryland; Buffalo, New York; New York, New York; Houston, Te xas; and “More Locations (1).” The “More Locations” reference had a link that, according to HRS, showed the location to be in Seattle, Washington. The record contains a five -page printout of the announcement; page 5 of the printout lists the sixth locati on as Seattle. The announcement period closed on April 18, 2014. In an April 21, 2014, e -mail to HRS, Complainant stated that he was a 30% or greater disabled veteran, that he had attempted to apply for the ADR Mediator vacancies prior to the closing date but had been unable to do so, and that he would like to be considered for the position under the Schedule A hiring authority. 3 Complainant did not explain why he had been unable to apply for 3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring applicants with disabilities. Although federal agencies are authorized to use Schedule A hiring 4 0120162639 the vacancies within the allotted time. HRS replied that Co mplainant should e -mail the required documents to her and should identify the locations for which he wanted to apply. Complainant submitted the documents to HRS on April 21, 2014; identified the Baltimore, New York, and Houston locations; and reiterated his interest in applying under the Schedule A hiring authority. On July 11, 2014, HRS sent the Schedule A certificate to the District Resource Manager (DRM) of the Houston District Office (Houston DO) and notified Complainant that his application had been referred to Houston for consideration under Schedule A. Complainant responded on July 14, 2014, that he also wanted to be considered for the Baltimore and New York vacancies, and HRS replied that she would issue notification letters as soon as she finis hed reviewing the applications. On July 15, 2014, HRS sent Schedule A certificates to the DRMs of the New York District Office (NYDO) and Philadelphia District Office (Philadelphia DO) 4 and the corresponding notification letters to Complainant. Complainant asked if the Agency was considering him under all hiring authorities, including the non- competitive Veterans Employment Opportunities Act (VEOA), Reinstatement Eligible, and 30% or More Disabled Veteran authorities. HRS notified the DRMs of the New Y ork, Houston, and Philadelphia District Offices that Complainant wanted to be considered under the four non- competitive authorities, provided the non- competitive certificates and Complainant’s application package to the DRMs, and sent notification letters to Complainant. The Philadelphia DRM sent HRS a July 16, 2014, e -mail stating that the Agency had moved the Baltimore vacancy to the Philadelphia District Office. She stated in her affidavit that the Philadelphia District Director asked the Agency’s Assistant Director of the Office of Human Resources to move the vacancy to Philadelphia. According to the Philadelphia DRM, the Philadelphia office had a greater need for a mediator because two mediators had retired. The Philadelphia District Director stated in his affidavit that the Agency’s Assistant Director of the Office of Human Resources made the decision to cancel the Baltimore vacancy and that management officials in the Baltimore Field Office had no involvement in the cancellation decision. In a July 22, 2014, memorandum to the NYDO Director, the NYDO ADR Coordinator stated that he, the NYDO Deputy Director, and the Director of the Buffalo Local Office interviewed seven candidates from the Best Qualified and Merit Promotion certificates for the New York City vacancy. 5 They unanimously recommended a candidate (S1) who was on the Best Qualified authority when considering applicants with disabilities, the use of this authority is not mandatory. See generally 5 C.F.R. § 213.3102(u). 4 The Philadelphia DRM served the Baltimore Field Office, which falls under the jurisdiction of the Philadelphia District Office. 5 The NYDO Director, NYDO Deputy Director, and NYDO ADR Coordinator stated in their affidavits that the Director of the Buffalo Local Office was a member of the interview panel. The Director of the Buffalo Local Office stated in his affidavit that he “was not involved in the selection of the candidate” for the NYDO and that he “was not part of the interviewing panel for the vacancy in question.” 5 0120162639 certificate. According to the memorandum, S1 “had a good interview,” received “an extremely strong reference from his former” supervisor, “is a licensed attorney and has an LLM in Dispute Resolution.” The New York DRM offered the position to S1 on July 25, 2014, and he accepted the offer. In his affidavit, the NYDO Director stated that he selected S1 based on the recommendation of the interview panel. The NYDO Deputy Director stated in her affidavit that the panel interviewed candidates from the Best Qualified and Merit Promotion certificates because “those lists offered the largest number of best -qualified applicants.” She also stated that S1 was the best candidate because he had experience working with the New York District Office’s ADR/Mediation program, was familiar with the Office’s mediation approaches, and had “focused his professional development on mediation practice.” The NYDO ADR Coordinator stated in his affidavit that S1 had been an intern in the NYDO, had experience in the Office’s ADR Unit, and “was very focused on a mediation career.” In a July 23, 2014, e -mail to the Director of the Office of Field Programs (OFP) and a Supervisory Program Analyst in OFP, the Houston District Director stated that he had offered the Houston position to a GS -13 Mediator from the Agency’s Miami District Office (Miami DO) who had applied for the job in Houston. The District Director asked whether he coul d accept the GS -13 Mediator as a “reassignment eligible” candidate and have the vacancy transferred to the Miami District Office. The Supervisory Program Analyst replied that the Mediator could be reassigned and that she would try to transfer the vacancy. The OFP Director approved of the request on July 24, 2014. The Houston District Director stated in his affidavit that he appointed the Houston ADR Supervisor, the Houston Deputy Director, and the Director of the New Orleans Field Office to a selection panel. He and the panel reviewed the DEU and Merit Promotion certificates and realized that an EEOC employee (S2) from the Miami District Office was on the certificates. They reviewed S2’s application package and agreed to select him as the best qualifi ed applicant. Because S2 would have had to accept a downgrade if he were chosen from one of the certificates, the Houston District Director contacted the Miami District Director to inquire about reassigning S2 to the Houston DO. According to the Houston Director, the two district offices, OFP, and the Office of Human Resources agreed to reassign S2 to the Houston DO and to give the Miami DO authorization to hire a mediator. The Miami District Director stated in his affidavit that he had no information about the cancellation of the Houston vacancy. He also stated that he was aware that the Miami DO received a Mediator position from the Houston DO in exchange for the transfer of a Miami DO Mediator to the Houston DO. On August 5, 2014, the Agency announced two vacancies for GS -0301- 12 ADR Mediator positions in Miami and Philadelphia (Job Announcement No. D14- OFP-1183231- 132-TMD). The vacancy announcement closed on August 13, 2014. 6 0120162639 In an August 6, 2014, cancellation letter that HRS e -mailed to Complainant, HRS stated that the Agency had cancelled the Baltimore vacancy and relocated it to Philadelphia. She provided the new vacancy announcement number (Job Announcement No. D14- OFP-1183231- 132-TMD) and stated, “Applicants who previously applied must RE -APPLY.” In response, Complainant asked why the Agency had cancelled the vacancy. HRS replied on August 11, 2014, that the Philadelphia District Office made the decision to move the vacancy to Philadelphia. In addition, she informed Complainant that the Agency reassigned the Miami ADR Mediator to Houston and moved the Houston vacancy to Miami. On August 12, 2014, Complainant asked HRS for the contact information of the Agency employee responsible for receiving discrimination complaints. HRS provided the names and telephone numbers of two individuals, including an “Equal Employment Specialist, O ffice of Equal Opportunity.” Also on August 12, 2014, Complainant asked HRS about the status of the vacancies in New York, Kansas City, Buffalo, and the “uns tated location.” HRS replied that that Agency had made a selection for the Seattle position but not for the other positions. Complainant then asked how the decision to move the vacancies to Philadelphia and Miami affected his application, whether he automatically would be considered for the two vacancies, whether he would have to reapply for the vacancies, and whether the Agency had selected, reassigned, or detailed candidates to fill the vacancies. HRS replied that the Baltimore cancellation letter stat ed that he would have to reapply but, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Philadelphia location. She likewise told him that, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Miami location. HRS stated that the Agency had not selected, reassigned, or detailed candidates for the vacancies. In an August 14, 2014, e -mail to HRS, Complainant asked who made the decisions to cancel the Baltimore and Houston vacancies, why the Agency made the decisions, and how many ADR Mediators were assigned to the Baltimore, Philadelphia, Houston, and Miami offices. HRS informed Complai nant that she had forwarded his questions to her supervisor. On August 15, 2014, HRS replied that “[m]anagement made the decision[s]” to cancel and transfer the vacancies and that Complainant could obtain information about the numbers of ADR Mediators by filing a Freedom of Information Act (FOIA) request. Complainant sent HRS an August 18, 2014, e -mail asserting that he had a right to know why the Agency had not selected him for the vacancies. He noted that the Agency had cancelled two of the vacancies for which he had applied, that the cancellations occurred after he submitted his application and was found to be qualified for the position, and that the Agency had not cancelled any of the vacancies for which he had not applied. Complainant alleged, “It now appears that you may be part of a concerted effort to impede my ability to obtain employment in advertised vacant positions that I am extremely qualified for and I should not have to take legal action to obtain information that should be available upon request.” Also on August 18, 2014, Complainant contacted the Equal Employment Specialist, and stated that he wanted to file an EEO complaint. 7 0120162639 On August 27, 2014, HRS notified the Philadelphia and Miami District Directors and DRMs that Complainant wanted to be considered for the vacancies under the four non- competitive authorities. She provided the non- competitive certificates and Complainant’s application package. HRS sent the notification letters to Complainant on September 3, 2014. In a September 4, 2014, response to HRS, Complainant asked whether there were certificates of eligibility on which he was not listed and, if so, why. HRS replied that the Agency’s automated system (USAStaffing) had generated Delegated Examining Unit (DEU) and Merit Promotion certificates and that Complainant’s name was not on those certificates. Complainant responded that his name should have been on the DEU and Merit Promotion certificates if he was eligible under those authorities. He stated that he never t old HRS that he wanted to be considered only for a non- competitive appointment. Complainant argued , If it was necessary to extend the time for me to apply because I needed to submit my application online via USA Staffing, you should have advised me because there was plenty of time to add my name and/or reopen the vacancy so that I could apply and not dis rupt the staffing and recruitment process. . . . It appears that there may be a coordinated effort to conduct recruitment for the position of ADR Mediator in a manner designed to excluded me from consideration, although I am extremely qualified to fill the position. Complainant sent HRS a September 12, 2014, e -mail noting that HRS had not responded to his September 4 communication and asking if he should assume that his name was not added to the DEU and Merit Promotion certificates. On September 17, 2014, HRS replied, Your name was referred to the selection official based on your prior emails. You asked if you would be automatically referred to the ADR Mediator vacancies in Philadelphia and Miami. So I referred your name to the selecting official as I referred it for the prior vacancy. Complainant responded, I never requested only to be considered under non- competitive appointing authorities for the ADR Mediator positions at issue. I requested to be considered under all applicable appointing authorities/methods. If you were not clear, then you should have made me aware and explained the process fully. Furthermore, I did not request consideration in a different manner for the Philadelphia vacancy (cancelled Baltimore vacancy) because I was n ot aware that I could request consideration under different appointing authorities or that the vacancy announcement would be reannounced and changed to generate additional certificates of eligibility, DEU and Merit Promotion. None of the other advertised vacancies for the ADR Mediator were reannounced and/or changed. 8 0120162639 In a September 6, 2014, e -mail to HRS, the Philadelphia DRM stated that the office had chosen an internal candidate from the Merit Promotion certificate for the position. The Philadelphia District Director stated in his affidavit that the office did not conduct interviews and that he was the “Approving Official” for the Philadelphia vacancy.6 He also stated that the selectee (S3) was the best candidate because S3 was an “excellent worker” who was dependable, could handle a large inventory, and had a “strong EEO background.” In addition, S3 had experience in mediation, counseling, negotiations, and settlements. In his affidavit, the Miami District Director stated that he assigned the Mia mi Deputy District Director, the Tampa Field Office Director, the Tampa Field Office Mediator, and the Miami District Chief Administrative Judge to the interview panel for the Miami vacancy. The panel interviewed candidates from the DEU and Merit Promotion certificates “because of the vast number of highly qualified candidates” on the certificates. According to the Miami District Director, the interview panel ranked the selected candidate (S4) the highest among the candidates. S4 “demonstrated an in -depth knowledge about the functioning, background and training of an EEOC mediator;” had worked with Agency mediators through an Agency mentorship program; and “presented strong background and training as a lawyer, certified mediator, and EEOC investigator.” In his Initial Interview Narrative, which he signed on August 28, 2014, Complainant alleged that the Agency discriminated against him on the basis of disability when it did not select him for any of the vacancies advertised in the April 10, 2014, vacancy announcement. He asserted that management and human resources officials manipulated the selection process to exclude him. Complainant stated, “Although I did not share my specific disability, I made human resources and management aware that I had a disability when I requested to be considered for an appointment under [Vacancy Announcement No. D14- OFP-1095443- 085-TMD] as a Schedule A (targeted disability) and as a Disabled Veteran.” Complainant also stated that he “applied competitively and non-competitively, as a status candidate, Schedule A, reinstatement eligible , VEOA, and Disabled Veteran.” Complainant noted that he sent e -mails to HRS regarding the vacancies. He also noted that he asked HRS who had decided to cancel the vacancies in the Baltimor e and Houston offices and to transfer the vacancies to the Philadelphia and Miami offices. According to Complainant, HRS refused to identify the decision- maker or to explain the reaso ns for the actions. In signed, written responses to the EEO Counselor ’s interview questions, Complainant alleged that the Agency cancelled the vacancies to prevent him from being selected for the positions. He also alleged that the Agency “concealed the location of the vacancy in the Seattle Office” to prevent him from applying for the position. Complainant declined to disclose whether he had a physical or mental disability and asked that his disability be identified as “unspecified.” He argued that, because he applied for the positions as a Schedule A and disabled -veteran applicant, human resource and management officials were aware that he had a disability. 6 In her affidavit, HRS identified the Philadelphia District Director as the “Selecting Official.” 9 0120162639 Procedural Background In an August 18, 2014, e -mail to the Agency Equal Employment Specialist whose name HRS had provided and who served as the EEO Counselor, Complainant stated that he wanted to file an EEO complaint regarding a non- selection. The EEO Counselor replied on Tue sday, August 19, and asked Complainant to let her know when he would be available for a discussion on Wednesday through Friday. Complainant responded on Friday, August 22, 2014. In his e -mail, Complainant asserted that he had “applied competitively and n on-competitively” for an ADR Mediator position under Job Announcement No. D14- OFP-1095443- 085-TMD. He alleged that the Agency subjected him to disability -based discrimination when Human Resources and Management officials allegedly manipulated the selectio n process by cancelling the Baltimore and Houston vacancies after learning that he was eligible for a non -competitive appointment. He asked the EEO Counselor to call or e -mail him if she needed additional information. On Monday, August 25, 2014, Complainant e -mailed the EEO Counselor, stated that she had not replied to the voice -mail message that he left her on August 22, asserted that it was taking too long to complete his initial EEO contact, and asked for the contact information of her supervis or. The EEO Counselor replied that she had been out of the office and asked if Complainant was available to discuss his complaint at 2:00 p.m. that day. In his response, Complainant asserted that his August 24 e -mail provided sufficient information and a gain asked for the contact information of the EEO Counselor’s supervisor. The EEO Counselor replied that she needed additional information from Complainant, that an initial interview was part of the complaint process, that she had called and left a messag e for him after receiving his voice -mail message, that he could provide an alternative time and date to discuss his complaint, and that she would forward his e -mail to the OEO Deputy Director. She subsequently asked Complainant to provide his home address and to indicate the law under which he was filing his complaint, whether he had a representative, and whether h e wished to remain anonymous. In an August 26, 2014, e -mail to the EEO Counselor, Complainant alleged that the EEO Counselor’s behavior was “ very troubling,” that some of the information she requested was not required during an initial interview, that “the applicable law is not a factor during the informal process,” and that she was trying to impede his ability to articulate his claim. He further asserted that, because she had not identified herself as an EEO Counselor, he was not aware that she was engaging in anything beyond an initial contact. He claimed that, “[a]s an EEO professional with many years of experience and knowledge regarding t he processing of” federal -sector complaints, he was not aware of any requirement that the initial contact and interview be conducted orally. He asked her to confirm whether she was acting as an EEO Counselor and to provide contact information for her firs t- and second- level supervisors. In addition, Complainant stated that he would submit a narrative to her and she could let him know if she had any questions about it. The OEO Deputy Director replied on August 26, 2014, and stated that Complainant’s Aug ust 18 e-mail to the “Equal Employment Specialist, who serves as the agency’s EEO Counselor” was sufficient to begin the counseling process. The OEO Deputy Director also stated that she was the 10 0120162639 EEO Counselor’s first -level supervisor and the OEO Director w as the second- level supervisor. She noted that an individual’s “initial contact begins the counseling process” and that, after the initial contact, the EEO Counselor sets up a meeting to discuss the individual’s claims. She explained that the Agency’s pr ocess might be different from the process that Complainant had experienced at his agency and asked Complainant to comply with the EEO Counselor’s request for a meeting. Complainant responded that he was not legally required to engage in an oral interview, that he preferred to communicate about his complaint in writing, and that the EEO Counselor could forward notices to him via e -mail. He asserted that “there is no miscommunication or misunderstanding on [his] part." The EEO Counselor sent interview questions to Complainant on August 28, 2014, and Complainant submitted his answers the next day. Complainant subsequently asked whether the EEO Counselor had spoken with management and whether management wished to discuss a resolution to his complaint. The EEO Counselor replied that the Agency cancelled the Houston vacancy because a Mediator had transferred to the position from Miami, that the Agency selected a candidate for the New York vacancy, that the Baltimore vacancy was cancelled and moved to Philade lphia, that the Agency placed someone in the Seattle position through a settlement agreement, and that HRS stated that she forwarded certificates and application packages for non - competitive authorities to the locations that Complainant had listed. She s ubsequently informed Complainant that the Agency chose an internal candidate for the Philadelphia vacancy. In a September 15, 2014, letter to Complainant, the EEO Counselor confirmed that she had conducted an initial interview with Complainant on August 28, 2014. She stated that Complainant alleged that the Agency subjected him to disability -based discrimination when it did not select him for any of the ADR Mediator vacancies under Job Announcement No. D14- OFP-1095443- 085- TMD. On September 16, 2014, the EEO Counselor sent Complainant an e -mail stating that the counseling process had ended. She issued a Notice of Right to File a Formal Complaint (NRTF) that stated that Complainant had alleged disability -based discrimination when he was “not selected for the GS -12 ADR Mediator position advertised under Vacancy Announcement ID (D14- OFP- 1095443- 085-TMD) for the following offices: Miami, Baltimore, Houston, Philadelphia, and New York.” In a September 18, 2014, e -mail response, Complainant asserted that the EEO Counselor’s contact with HRS was the sole extent of the Counselor’s inquiry and that there had been no efforts to resolve his complaint during the informal process. He asked whether HRS or other management officials had provided any documents concerning the matter. The EEO Counselor replied on September 21 that she conducted inquiries with HRS, the Philadelphia and Miami DRMs, and the NYDO Director; that she learned during the inquiries that the Agency had filled the vacancies; and that the documents she received included vacancy announcements, Complainant’s application package, the certificates on which his name appeared, and internal e -mails. She reminded Complainant that “the counseling process is a limited process and not intended to duplicate an investigation.” Complainant responded on October 7, 2014, and asserted that the counseling “was woefully inadequate and biased.” He alleged, among other things, that the EEO Counselor did not conduct a sufficient inquiry, did not provide him with suffic ient information, and did not address whether Agency officials wanted to resolve his claim. 11 0120162639 In an October 9, 2014, letter to the OEO Director, Complainant asserted that the EEO Counselor had mischaracterized his claim. He filed a formal EEO complaint o n October 10, 2014. In an October 17, 2014, letter to the OEO Director, Complainant expressed his dissatisfaction with the processing of his informal complaint. He alleged that the EEO Counselor conducted counseling in a manner designed to impede his abi lity to file a formal complaint. Complainant raised several specific allegations, which the Agency summarized in its January 29, 2015, acceptance letter. In January 12, 15, and 20, 2015, e -mails to Complainant, an Equal Employment Specialist, who served as the EEO Investigator, asked Complainant to clarify his allegation that unknown management officials had intimidated and deterred him from filing a formal complaint. Complainant sent a January 20, 2015, letter to the OEO Director and identified severa l Agency management officials. In addition, he alleged that the EEO Counselor conducted biased counseling by “(1) not wanting to communicate in writing, (2) waiting until most of the EEO Counseling period had expired to begin EEO Counseling, and (3) inter viewing responsible management officials after EEO Counseling had closed even though they were available prior to the close of EEO Counseling.” Asserting that “ADR Mediators likely work very closely with EEOC EEO employees,” Complainant argued that it pos ed a conflict of interest to have Agency EEO employees handle his complaint. He identified his claim as follows: I was subjected to illegal discrimination on the basis of disability (Schedule A - targeted) and reprisal for prior EEIO activity when EEOC H uman Resources and Management employees conspired to manipulate the recruitment and selection process for advertised vacancies as a GS -12 ADR Mediator under vacancy announcements (D14- OFP-1095443- 085-TMD and D14- OFP-1183231- 132- TMD) to prevent my considera tion and selection as a top qualified candidate. My contention is evidence by the following events: . . . . He then identified specific individuals and five events: the cancellation of the Houston vacancy, the cancellation of the Baltimore vacancy, h is non- selection for the New York vacancy, the alleged concealment of the location of the Seattle vacancy, and the alleged improper processing of his complaint. The Agency accepted Complainant’s complaint for investigation on January 29, 2015. In a February 7, 2015, e -mail to the OEO Deputy Director, Complainant objected to the acceptance letter’s use of the phrase “unknown EEOC management officials” and questioned why the Agency had provided copies of the letter to several management officials. The OE O Deputy Director replied on February 9 that the phrase “unknown EEOC management officials” came from Complainant’s formal complaint, that Complainant would have an opportunity during the investigation to ensure that all officials were identified correctly , and that the Agency notifies the affected offices when a complaint is accepted to ensure that the offices retain relevant documentation. In a February 13, 2015, e -mail to the OEO Deputy Director, Complainant argued that the acceptance letter inappropriately omitted the names of responsible management officials and relevant information that he had mentioned in his January 20, 2015, letter. He stated that he wanted to receive copies of all management officials’ statements so that he could provide a rebutt al 12 0120162639 statement. In addition, he repeated the arguments that he made in his January 20, 2015, letter to the OEO Director. In a March 3, 2015, email to Complainant, the EEO Investigator attached an “affidavit in question form” and asked Complainant to complete the affidavit by March 12, 2015. The form reiterated the accepted issues and asked such questions as when and how Complainant applied for the positions, what his qualifications were, whether he knew who the selecting officials and selectees were, why he believed that the Agency subjected him to discrimination based on disability and reprisal, and whether he wished to provide any other information or documents. In a March 4, 2015, e -mail to the OEO Deputy Director, Complainant noted that OEO Deputy Di rector had not replied to his February 13 e -mail. He alleged that it was a conflict of interest for the Agency EEO Investigator to investigate his complaint. In addition, Complainant argued that the EEO Investigator had given him “an affidavit that refle cts only . . . generic and incorrect claims” rather than specific claims that identified management officials. The OEO Deputy Director replied on March 4, 2015. She stated that Agency mediators work in the field offices and are not assigned to mediate internal EEO claims, that none of the Agency’s EEO officials had any involvement in Complainant’s substantive claims, and that there was no conflict of interest. She also stated that the affidavit gave Complainant an opportunity to support his claim and to identify the responsible management officials, that the EEO Investigator might identify additional officials during the investigation, that the Agency would provide a summary of management officials’ statements to him for rebuttal purposes, and that he w ould receive copies of all statements after the conclusion of the investigation. Finally, the OEO Deputy Director noted that Complainant’s concerns about the processing of his complaint would be included in the complaint file. Complainant continued to disagree with the Agency’s characterization of his claims and to express dissatisfaction with the complaint process. In a March 16, 2015, e -mail to the OEO Deputy Director, Complainant alleged that the OEO Director, OEO Deputy Director, and EEO Investigator retaliated against him by refusing to record his claims accurately. He asserted that, because he now had identified them as responsible management officials, their involvement in the processing of his complaint created a conflict of interest. The OEO Deputy Director replied that the Agency was investigating his complaint in accordance with the applicable regulations. She stated that Complainant’s definition of his claim “materially addresses the same claim that was accepted” and that he coul d clarify as well as support his claim in his affidavit. She reiterated that the complaint file would include Complainant’s concerns about the processing of his complaint. On March 11, 2015, Complainant requested and received an extension of time for submitting his affidavit until March 16, 2015. He stated that he had been unable to complete the affidavit “due to illness and other obligations.” On March 18, 2015, the EEO Investigator asked Complainant about the status of his affidavit. He responded on March 20 that he had been waiting to learn if the Agency would revise the characterization of his claims, that the EEO Investigator had sufficient information to begin the investigation, and that he would submit an affidavit and rebuttal statement after t he Investigator gave him an opportunity to review the affidavits provided by management witnesses. Complainant stated that, if necessary, he would grant the Investigator an extension of 13 0120162639 time within which to complete the investigation. On March 23, the EE O Investigator requested an extension until May 22, 2015, for completion of the investigation. Complainant responded that he would grant an extension only if the Agency’s Assistant Legal Counsel for Freedom of Information Act Programs would provide him “w ith all of the responsive documents regarding [his] FOIA request . . .without redacting unnecessary information.” The EEO Investigator replied on March 26 that, because Complainant was not willing to grant an extension, she would issue the Report of Inves tigation (ROI) on April 8, 2015, and would give Complainant 15 days after receipt of the ROI within which to submit a rebuttal. Complainant subsequently informed the EEO Investigator that he would grant an extension until May 22, 2015. He asked the Inves tigator if she would provide him with a copy of her Investigative Plan, witness statements, and the selectees’ application materials. The EEO Investigator replied that she would give Complainant an opportunity to review management’s responses and to submi t a rebuttal and that she would include additional information in the ROI. On April 23, 2015, the EEO Investigator provided Complainant with a summary of management’s and witnesses’ statements and asked him to provide a rebuttal by May 6, 2015. Complainant asked the Investigator to provide additional information, including e -mails regarding the selections and vacancies, complete witness statements, application packages, certificates, and interview -panel notes and scores. The OEO Deputy Director replied that the Investigator was in training, that investigators did not provide aff idavits and other evidence prior to the conclusion of an investigation, that the Agency provides a summary of management’s responses for rebuttal purposes, and that Complainant would receive the entire record at the conclusion of the investigation. On M ay 6, 2015, Complainant requested an extension of time for submitting his affidavit until May 13, 2015, because of “unforeseen personal circumstances.” The EEO Investigator granted his request and asked to extend the time for completing the investigation until June 5, 2015. Complainant agreed to the extension. On May 14, 2015, the EEO Investigator asked Complainant for the status of his affidavit. He responded on May 15 and asked the Investigator to hold the investigation in abeyance for two weeks because he was “currently experiencing medical issues that require immediate attention.” The Investigator agreed to extend the date for the affidavit until May 29 and noted that this would extend the investigation until June 19, 2015. On June 2, 2015, Complai nant informed the Investigator that he had “not fully recovered from the medical issues” that had prevented him providing his affidavit. He asked for an additional two- week extension. The EEO Investigator replied that OEO needed to issue the ROI but woul d allow Complainant to submit an affidavit up to two weeks after June 19, 2015. Complainant never submitted an affidavit or a rebuttal statement. By letter dated June 15, 2015, the Agency provided Complainant with a copy of the ROI and notice of his ri ght to request a hearing before an EEOC Administrative Judge or a final agency decision. According to the Agency, Complainant requested a final agency decision. 14 0120162639 Final Agency Decision In its final decision, the Agency concluded that Complainant did not establish that it discriminated against him as alleged. The Agency found that Complainant did not establish prima facie cases of discrimination based on disability or reprisal. The Agency further found that it articulated legitimate, nondiscriminator y reasons for its actions and that Complainant did not show that the articulated reasons were a pretext for discrimination. For example, the Agency noted that the Miami, Philadelphia, and New York officials selected candidates from competitive certificates because the certificates offered a larger number of candidates than the non- competitive certificates. It found no evidence that discriminatory or retaliatory animus motivated the Agency’s decision to use only the competitive certificates. Similarly, the Agency found no evidence to support Complainant’s assertion that the Agency failed to consider him for the positions because he notified HRS that he wanted to be considered through non-competitive authorities. Further, the Agency concluded that the evidence did not support Complainant’s claims that Agency officials conspired to exclude him from the ADR Mediator positions by cancelling and moving vacancies or by excluding him from the competitive certificates. The Agency found that there was no merit to Complainant’s claim of improper complaint- processing. In that regard, the Agency stated that the EEO Counselor “took all reasonable measures to ensure that his complaint was timely filed,” that her failure to identify herself as an EEO Counselor in he r initial e -mail to Complainant did not delay or negatively affect the counselling, that the OEO Deputy Director’s August 26, 2014, e -mail to Complainant explained the initial- contact process, and that the EEO Counselor responded promptly to Complainant’s inquiries. The Agency noted that the EEO Counselor’s “generic statement” of Complainant’s claim in the Notice of Right to File a Formal Complaint did not include all of the information that Complainant provided in his August 2014 submissions. It also not ed, however, that OEO used all of the information that Complainant provided when it drafted its Notice of Acceptance. As a result, the Agency found that OEO cured any harm that Complainant may have suffered. The Agency further found that the EEO Counselor conducted a sufficient inquiry and that she gave Complainant the names of several management witnesses. Noting that Complainant received the names of additional officials after filing a FOIA request and that the EEO Investigator interviewed all of the r esponsible management officials whom Complainant identified, the Agency stated that the inclusion of this information in the investigation cured any harm that Complainant may have suffered. In addition, the Agency found that there was no merit to Complainant’s claim that the EEO Counselor did not provide him with the reasons for his non- selection and the cancellation of vacancies. With respect to Complainant’s claim that the Counselor failed to identify resolving officials or attempts at resolution, the A gency stated that the selecting officials were the responsible management officials and “would also have been the resolving officials if they thought a resolution could be reached.” Finally, the Agency found that the Notice of Acceptance adequately framed Complainant’s claims. 15 0120162639 The Agency concluded that Complainant did not identify any harm that he suffered as a result of the Agency’s actions regarding the processing of his complaint and did not show that the Agency’s actions affected the outcome of the complaint. The Agency “dismissed” Complainant’s improper - processing complaint for failure to state a claim. In its Conclusion, the Agency also “dismissed” Complainant’s claim that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity. CONTENTIONS ON APPEAL Complainant did not file a statement on appeal.7 The Agency argues that its final decision correctly rejected Complainant’s claims of discrimination and improper complaint- processing. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Manage ment Directive for 29 C.F.R. Part 1614, at Chap . 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision make r,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the la w”). Legal Analysis: the Commission AFFIRMS the Agency’s final decision.2 ISSUES PRESENTED The issues presented are: (1) whether the Agency processed Complainant’s complaint improperly and (2) whether the Agency discriminated against Complainant on the basis of disability and in reprisal for prior protected EEO activity when it did not select him for a GS-0301- 12 ADR Mediator position. 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 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC) is both (1) the respondent Agency and (2) the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent party. In all cases, the Commission its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. 2 0120162639 BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On October 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability and in re prisal for prior protected EEO activity. In its Notice of Acceptance, the Agency defined the accepted issues as follows: (1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14-OFP-1095443- 085-TMD, which advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington; (2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14- OFP-1183231- 132-TMD, which advertised vacant positions located in Miami, Florida, and Philadelphia, Pennsylvania; and (3) unknown EEO management and Human Resource officials, including a Human Resources Specialist (HRS), (a) conspired to manipulate the recruitment and staffing for ADR Mediator positions; (b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office; (c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office to the Philadelphia, Pennsylvania, office; and (d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities. Further, the Agency noted that Complainant also claimed that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when unknown EEOC management officials authorized and admin istered EEO counseling designed to intimidate and deter him from filing a formal EEO complaint. The Agency stated that it would process the claims concerning the processing of his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110). Specifically, Complainant alleged that: (1) the EEO Counselor failed to identify herself or her role when she initially contacted Complainant, causing an unnecessary delay in the start of EEO counseling; 3 0120162639 (2) the EEO Counselor initially refused to respond via e -mail to Complainant’s specific inquiries regarding his initial contact; (3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing; (4) the EEO Counselor recorded Complainant’s claims and bases incorrectly; (5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry ; (6) the EEO Counselor failed to identify the name and title of any involved EEOC management official or any documents reviewed during EEO counseling; (7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the EEOC responsible management officials or the reasons why the positions were cancelled and moved to another location; and (8) the EEO Counselor failed to identify any resolving official or any attempts at resolutio n during the counseling; Complainant subsequently also alleged that that the Agency subjected him to reprisal for the instant complaint by not framing his allegations accurately in the Notice of Acceptance. On April 10, 2014, the Agency announced six vacancies for GS -0301- 12 ADR Mediator positions (Job Announcement No. D14- OFP-1095443- 085-TMD). The vacancy announcement listed the following vacancy locations: Kansas City, Kansas; Baltimore, Maryland; Buffalo, New York; New York, New York; Houston, Te xas; and “More Locations (1).” The “More Locations” reference had a link that, according to HRS, showed the location to be in Seattle, Washington. The record contains a five -page printout of the announcement; page 5 of the printout lists the sixth locati on as Seattle. The announcement period closed on April 18, 2014. In an April 21, 2014, e -mail to HRS, Complainant stated that he was a 30% or greater disabled veteran, that he had attempted to apply for the ADR Mediator vacancies prior to the closing date but had been unable to do so, and that he would like to be considered for the position under the Schedule A hiring authority. 3 Complainant did not explain why he had been unable to apply for 3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring applicants with disabilities. Although federal agencies are authorized to use Schedule A hiring 4 0120162639 the vacancies within the allotted time. HRS replied that Co mplainant should e -mail the required documents to her and should identify the locations for which he wanted to apply. Complainant submitted the documents to HRS on April 21, 2014; identified the Baltimore, New York, and Houston locations; and reiterated his interest in applying under the Schedule A hiring authority. On July 11, 2014, HRS sent the Schedule A certificate to the District Resource Manager (DRM) of the Houston District Office (Houston DO) and notified Complainant that his application had been referred to Houston for consideration under Schedule A. Complainant responded on July 14, 2014, that he also wanted to be considered for the Baltimore and New York vacancies, and HRS replied that she would issue notification letters as soon as she finis hed reviewing the applications. On July 15, 2014, HRS sent Schedule A certificates to the DRMs of the New York District Office (NYDO) and Philadelphia District Office (Philadelphia DO) 4 and the corresponding notification letters to Complainant. Complainant asked if the Agency was considering him under all hiring authorities, including the non- competitive Veterans Employment Opportunities Act (VEOA), Reinstatement Eligible, and 30% or More Disabled Veteran authorities. HRS notified the DRMs of the New Y ork, Houston, and Philadelphia District Offices that Complainant wanted to be considered under the four non- competitive authorities, provided the non- competitive certificates and Complainant’s application package to the DRMs, and sent notification letters to Complainant. The Philadelphia DRM sent HRS a July 16, 2014, e -mail stating that the Agency had moved the Baltimore vacancy to the Philadelphia District Office. She stated in her affidavit that the Philadelphia District Director asked the Agency’s Assistant Director of the Office of Human Resources to move the vacancy to Philadelphia. According to the Philadelphia DRM, the Philadelphia office had a greater need for a mediator because two mediators had retired. The Philadelphia District Director stated in his affidavit that the Agency’s Assistant Director of the Office of Human Resources made the decision to cancel the Baltimore vacancy and that management officials in the Baltimore Field Office had no involvement in the cancellation decision. In a July 22, 2014, memorandum to the NYDO Director, the NYDO ADR Coordinator stated that he, the NYDO Deputy Director, and the Director of the Buffalo Local Office interviewed seven candidates from the Best Qualified and Merit Promotion certificates for the New York City vacancy. 5 They unanimously recommended a candidate (S1) who was on the Best Qualified authority when considering applicants with disabilities, the use of this authority is not mandatory. See generally 5 C.F.R. § 213.3102(u). 4 The Philadelphia DRM served the Baltimore Field Office, which falls under the jurisdiction of the Philadelphia District Office. 5 The NYDO Director, NYDO Deputy Director, and NYDO ADR Coordinator stated in their affidavits that the Director of the Buffalo Local Office was a member of the interview panel. The Director of the Buffalo Local Office stated in his affidavit that he “was not involved in the selection of the candidate” for the NYDO and that he “was not part of the interviewing panel for the vacancy in question.” 5 0120162639 certificate. According to the memorandum, S1 “had a good interview,” received “an extremely strong reference from his former” supervisor, “is a licensed attorney and has an LLM in Dispute Resolution.” The New York DRM offered the position to S1 on July 25, 2014, and he accepted the offer. In his affidavit, the NYDO Director stated that he selected S1 based on the recommendation of the interview panel. The NYDO Deputy Director stated in her affidavit that the panel interviewed candidates from the Best Qualified and Merit Promotion certificates because “those lists offered the largest number of best -qualified applicants.” She also stated that S1 was the best candidate because he had experience working with the New York District Office’s ADR/Mediation program, was familiar with the Office’s mediation approaches, and had “focused his professional development on mediation practice.” The NYDO ADR Coordinator stated in his affidavit that S1 had been an intern in the NYDO, had experience in the Office’s ADR Unit, and “was very focused on a mediation career.” In a July 23, 2014, e -mail to the Director of the Office of Field Programs (OFP) and a Supervisory Program Analyst in OFP, the Houston District Director stated that he had offered the Houston position to a GS -13 Mediator from the Agency’s Miami District Office (Miami DO) who had applied for the job in Houston. The District Director asked whether he coul d accept the GS -13 Mediator as a “reassignment eligible” candidate and have the vacancy transferred to the Miami District Office. The Supervisory Program Analyst replied that the Mediator could be reassigned and that she would try to transfer the vacancy. The OFP Director approved of the request on July 24, 2014. The Houston District Director stated in his affidavit that he appointed the Houston ADR Supervisor, the Houston Deputy Director, and the Director of the New Orleans Field Office to a selection panel. He and the panel reviewed the DEU and Merit Promotion certificates and realized that an EEOC employee (S2) from the Miami District Office was on the certificates. They reviewed S2’s application package and agreed to select him as the best qualifi ed applicant. Because S2 would have had to accept a downgrade if he were chosen from one of the certificates, the Houston District Director contacted the Miami District Director to inquire about reassigning S2 to the Houston DO. According to the Houston Director, the two district offices, OFP, and the Office of Human Resources agreed to reassign S2 to the Houston DO and to give the Miami DO authorization to hire a mediator. The Miami District Director stated in his affidavit that he had no information about the cancellation of the Houston vacancy. He also stated that he was aware that the Miami DO received a Mediator position from the Houston DO in exchange for the transfer of a Miami DO Mediator to the Houston DO. On August 5, 2014, the Agency announced two vacancies for GS -0301- 12 ADR Mediator positions in Miami and Philadelphia (Job Announcement No. D14- OFP-1183231- 132-TMD). The vacancy announcement closed on August 13, 2014. 6 0120162639 In an August 6, 2014, cancellation letter that HRS e -mailed to Complainant, HRS stated that the Agency had cancelled the Baltimore vacancy and relocated it to Philadelphia. She provided the new vacancy announcement number (Job Announcement No. D14- OFP-1183231- 132-TMD) and stated, “Applicants who previously applied must RE -APPLY.” In response, Complainant asked why the Agency had cancelled the vacancy. HRS replied on August 11, 2014, that the Philadelphia District Office made the decision to move the vacancy to Philadelphia. In addition, she informed Complainant that the Agency reassigned the Miami ADR Mediator to Houston and moved the Houston vacancy to Miami. On August 12, 2014, Complainant asked HRS for the contact information of the Agency employee responsible for receiving discrimination complaints. HRS provided the names and telephone numbers of two individuals, including an “Equal Employment Specialist, O ffice of Equal Opportunity.” Also on August 12, 2014, Complainant asked HRS about the status of the vacancies in New York, Kansas City, Buffalo, and the “uns tated location.” HRS replied that that Agency had made a selection for the Seattle position but not for the other positions. Complainant then asked how the decision to move the vacancies to Philadelphia and Miami affected his application, whether he automatically would be considered for the two vacancies, whether he would have to reapply for the vacancies, and whether the Agency had selected, reassigned, or detailed candidates to fill the vacancies. HRS replied that the Baltimore cancellation letter stat ed that he would have to reapply but, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Philadelphia location. She likewise told him that, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Miami location. HRS stated that the Agency had not selected, reassigned, or detailed candidates for the vacancies. In an August 14, 2014, e -mail to HRS, Complainant asked who made the decisions to cancel the Baltimore and Houston vacancies, why the Agency made the decisions, and how many ADR Mediators were assigned to the Baltimore, Philadelphia, Houston, and Miami offices. HRS informed Complai nant that she had forwarded his questions to her supervisor. On August 15, 2014, HRS replied that “[m]anagement made the decision[s]” to cancel and transfer the vacancies and that Complainant could obtain information about the numbers of ADR Mediators by filing a Freedom of Information Act (FOIA) request. Complainant sent HRS an August 18, 2014, e -mail asserting that he had a right to know why the Agency had not selected him for the vacancies. He noted that the Agency had cancelled two of the vacancies for which he had applied, that the cancellations occurred after he submitted his application and was found to be qualified for the position, and that the Agency had not cancelled any of the vacancies for which he had not applied. Complainant alleged, “It now appears that you may be part of a concerted effort to impede my ability to obtain employment in advertised vacant positions that I am extremely qualified for and I should not have to take legal action to obtain information that should be available upon request.” Also on August 18, 2014, Complainant contacted the Equal Employment Specialist, and stated that he wanted to file an EEO complaint. 7 0120162639 On August 27, 2014, HRS notified the Philadelphia and Miami District Directors and DRMs that Complainant wanted to be considered for the vacancies under the four non- competitive authorities. She provided the non- competitive certificates and Complainant’s application package. HRS sent the notification letters to Complainant on September 3, 2014. In a September 4, 2014, response to HRS, Complainant asked whether there were certificates of eligibility on which he was not listed and, if so, why. HRS replied that the Agency’s automated system (USAStaffing) had generated Delegated Examining Unit (DEU) and Merit Promotion certificates and that Complainant’s name was not on those certificates. Complainant responded that his name should have been on the DEU and Merit Promotion certificates if he was eligible under those authorities. He stated that he never t old HRS that he wanted to be considered only for a non- competitive appointment. Complainant argued , If it was necessary to extend the time for me to apply because I needed to submit my application online via USA Staffing, you should have advised me because there was plenty of time to add my name and/or reopen the vacancy so that I could apply and not dis rupt the staffing and recruitment process. . . . It appears that there may be a coordinated effort to conduct recruitment for the position of ADR Mediator in a manner designed to excluded me from consideration, although I am extremely qualified to fill the position. Complainant sent HRS a September 12, 2014, e -mail noting that HRS had not responded to his September 4 communication and asking if he should assume that his name was not added to the DEU and Merit Promotion certificates. On September 17, 2014, HRS replied, Your name was referred to the selection official based on your prior emails. You asked if you would be automatically referred to the ADR Mediator vacancies in Philadelphia and Miami. So I referred your name to the selecting official as I referred it for the prior vacancy. Complainant responded, I never requested only to be considered under non- competitive appointing authorities for the ADR Mediator positions at issue. I requested to be considered under all applicable appointing authorities/methods. If you were not clear, then you should have made me aware and explained the process fully. Furthermore, I did not request consideration in a different manner for the Philadelphia vacancy (cancelled Baltimore vacancy) because I was n ot aware that I could request consideration under different appointing authorities or that the vacancy announcement would be reannounced and changed to generate additional certificates of eligibility, DEU and Merit Promotion. None of the other advertised vacancies for the ADR Mediator were reannounced and/or changed. 8 0120162639 In a September 6, 2014, e -mail to HRS, the Philadelphia DRM stated that the office had chosen an internal candidate from the Merit Promotion certificate for the position. The Philadelphia District Director stated in his affidavit that the office did not conduct interviews and that he was the “Approving Official” for the Philadelphia vacancy.6 He also stated that the selectee (S3) was the best candidate because S3 was an “excellent worker” who was dependable, could handle a large inventory, and had a “strong EEO background.” In addition, S3 had experience in mediation, counseling, negotiations, and settlements. In his affidavit, the Miami District Director stated that he assigned the Mia mi Deputy District Director, the Tampa Field Office Director, the Tampa Field Office Mediator, and the Miami District Chief Administrative Judge to the interview panel for the Miami vacancy. The panel interviewed candidates from the DEU and Merit Promotion certificates “because of the vast number of highly qualified candidates” on the certificates. According to the Miami District Director, the interview panel ranked the selected candidate (S4) the highest among the candidates. S4 “demonstrated an in -depth knowledge about the functioning, background and training of an EEOC mediator;” had worked with Agency mediators through an Agency mentorship program; and “presented strong background and training as a lawyer, certified mediator, and EEOC investigator.” In his Initial Interview Narrative, which he signed on August 28, 2014, Complainant alleged that the Agency discriminated against him on the basis of disability when it did not select him for any of the vacancies advertised in the April 10, 2014, vacancy announcement. He asserted that management and human resources officials manipulated the selection process to exclude him. Complainant stated, “Although I did not share my specific disability, I made human resources and management aware that I had a disability when I requested to be considered for an appointment under [Vacancy Announcement No. D14- OFP-1095443- 085-TMD] as a Schedule A (targeted disability) and as a Disabled Veteran.” Complainant also stated that he “applied competitively and non-competitively, as a status candidate, Schedule A, reinstatement eligible , VEOA, and Disabled Veteran.” Complainant noted that he sent e -mails to HRS regarding the vacancies. He also noted that he asked HRS who had decided to cancel the vacancies in the Baltimor e and Houston offices and to transfer the vacancies to the Philadelphia and Miami offices. According to Complainant, HRS refused to identify the decision- maker or to explain the reaso ns for the actions. In signed, written responses to the EEO Counselor ’s interview questions, Complainant alleged that the Agency cancelled the vacancies to prevent him from being selected for the positions. He also alleged that the Agency “concealed the location of the vacancy in the Seattle Office” to prevent him from applying for the position. Complainant declined to disclose whether he had a physical or mental disability and asked that his disability be identified as “unspecified.” He argued that, because he applied for the positions as a Schedule A and disabled -veteran applicant, human resource and management officials were aware that he had a disability. 6 In her affidavit, HRS identified the Philadelphia District Director as the “Selecting Official.” 9 0120162639 Procedural Background In an August 18, 2014, e -mail to the Agency Equal Employment Specialist whose name HRS had provided and who served as the EEO Counselor, Complainant stated that he wanted to file an EEO complaint regarding a non- selection. The EEO Counselor replied on Tue sday, August 19, and asked Complainant to let her know when he would be available for a discussion on Wednesday through Friday. Complainant responded on Friday, August 22, 2014. In his e -mail, Complainant asserted that he had “applied competitively and n on-competitively” for an ADR Mediator position under Job Announcement No. D14- OFP-1095443- 085-TMD. He alleged that the Agency subjected him to disability -based discrimination when Human Resources and Management officials allegedly manipulated the selectio n process by cancelling the Baltimore and Houston vacancies after learning that he was eligible for a non -competitive appointment. He asked the EEO Counselor to call or e -mail him if she needed additional information. On Monday, August 25, 2014, Complainant e -mailed the EEO Counselor, stated that she had not replied to the voice -mail message that he left her on August 22, asserted that it was taking too long to complete his initial EEO contact, and asked for the contact information of her supervis or. The EEO Counselor replied that she had been out of the office and asked if Complainant was available to discuss his complaint at 2:00 p.m. that day. In his response, Complainant asserted that his August 24 e -mail provided sufficient information and a gain asked for the contact information of the EEO Counselor’s supervisor. The EEO Counselor replied that she needed additional information from Complainant, that an initial interview was part of the complaint process, that she had called and left a messag e for him after receiving his voice -mail message, that he could provide an alternative time and date to discuss his complaint, and that she would forward his e -mail to the OEO Deputy Director. She subsequently asked Complainant to provide his home address and to indicate the law under which he was filing his complaint, whether he had a representative, and whether h e wished to remain anonymous. In an August 26, 2014, e -mail to the EEO Counselor, Complainant alleged that the EEO Counselor’s behavior was “ very troubling,” that some of the information she requested was not required during an initial interview, that “the applicable law is not a factor during the informal process,” and that she was trying to impede his ability to articulate his claim. He further asserted that, because she had not identified herself as an EEO Counselor, he was not aware that she was engaging in anything beyond an initial contact. He claimed that, “[a]s an EEO professional with many years of experience and knowledge regarding t he processing of” federal -sector complaints, he was not aware of any requirement that the initial contact and interview be conducted orally. He asked her to confirm whether she was acting as an EEO Counselor and to provide contact information for her firs t- and second- level supervisors. In addition, Complainant stated that he would submit a narrative to her and she could let him know if she had any questions about it. The OEO Deputy Director replied on August 26, 2014, and stated that Complainant’s Aug ust 18 e-mail to the “Equal Employment Specialist, who serves as the agency’s EEO Counselor” was sufficient to begin the counseling process. The OEO Deputy Director also stated that she was the 10 0120162639 EEO Counselor’s first -level supervisor and the OEO Director w as the second- level supervisor. She noted that an individual’s “initial contact begins the counseling process” and that, after the initial contact, the EEO Counselor sets up a meeting to discuss the individual’s claims. She explained that the Agency’s pr ocess might be different from the process that Complainant had experienced at his agency and asked Complainant to comply with the EEO Counselor’s request for a meeting. Complainant responded that he was not legally required to engage in an oral interview, that he preferred to communicate about his complaint in writing, and that the EEO Counselor could forward notices to him via e -mail. He asserted that “there is no miscommunication or misunderstanding on [his] part." The EEO Counselor sent interview questions to Complainant on August 28, 2014, and Complainant submitted his answers the next day. Complainant subsequently asked whether the EEO Counselor had spoken with management and whether management wished to discuss a resolution to his complaint. The EEO Counselor replied that the Agency cancelled the Houston vacancy because a Mediator had transferred to the position from Miami, that the Agency selected a candidate for the New York vacancy, that the Baltimore vacancy was cancelled and moved to Philade lphia, that the Agency placed someone in the Seattle position through a settlement agreement, and that HRS stated that she forwarded certificates and application packages for non - competitive authorities to the locations that Complainant had listed. She s ubsequently informed Complainant that the Agency chose an internal candidate for the Philadelphia vacancy. In a September 15, 2014, letter to Complainant, the EEO Counselor confirmed that she had conducted an initial interview with Complainant on August 28, 2014. She stated that Complainant alleged that the Agency subjected him to disability -based discrimination when it did not select him for any of the ADR Mediator vacancies under Job Announcement No. D14- OFP-1095443- 085- TMD. On September 16, 2014, the EEO Counselor sent Complainant an e -mail stating that the counseling process had ended. She issued a Notice of Right to File a Formal Complaint (NRTF) that stated that Complainant had alleged disability -based discrimination when he was “not selected for the GS -12 ADR Mediator position advertised under Vacancy Announcement ID (D14- OFP- 1095443- 085-TMD) for the following offices: Miami, Baltimore, Houston, Philadelphia, and New York.” In a September 18, 2014, e -mail response, Complainant asserted that the EEO Counselor’s contact with HRS was the sole extent of the Counselor’s inquiry and that there had been no efforts to resolve his complaint during the informal process. He asked whether HRS or other management officials had provided any documents concerning the matter. The EEO Counselor replied on September 21 that she conducted inquiries with HRS, the Philadelphia and Miami DRMs, and the NYDO Director; that she learned during the inquiries that the Agency had filled the vacancies; and that the documents she received included vacancy announcements, Complainant’s application package, the certificates on which his name appeared, and internal e -mails. She reminded Complainant that “the counseling process is a limited process and not intended to duplicate an investigation.” Complainant responded on October 7, 2014, and asserted that the counseling “was woefully inadequate and biased.” He alleged, among other things, that the EEO Counselor did not conduct a sufficient inquiry, did not provide him with suffic ient information, and did not address whether Agency officials wanted to resolve his claim. 11 0120162639 In an October 9, 2014, letter to the OEO Director, Complainant asserted that the EEO Counselor had mischaracterized his claim. He filed a formal EEO complaint o n October 10, 2014. In an October 17, 2014, letter to the OEO Director, Complainant expressed his dissatisfaction with the processing of his informal complaint. He alleged that the EEO Counselor conducted counseling in a manner designed to impede his abi lity to file a formal complaint. Complainant raised several specific allegations, which the Agency summarized in its January 29, 2015, acceptance letter. In January 12, 15, and 20, 2015, e -mails to Complainant, an Equal Employment Specialist, who served as the EEO Investigator, asked Complainant to clarify his allegation that unknown management officials had intimidated and deterred him from filing a formal complaint. Complainant sent a January 20, 2015, letter to the OEO Director and identified severa l Agency management officials. In addition, he alleged that the EEO Counselor conducted biased counseling by “(1) not wanting to communicate in writing, (2) waiting until most of the EEO Counseling period had expired to begin EEO Counseling, and (3) inter viewing responsible management officials after EEO Counseling had closed even though they were available prior to the close of EEO Counseling.” Asserting that “ADR Mediators likely work very closely with EEOC EEO employees,” Complainant argued that it pos ed a conflict of interest to have Agency EEO employees handle his complaint. He identified his claim as follows: I was subjected to illegal discrimination on the basis of disability (Schedule A - targeted) and reprisal for prior EEIO activity when EEOC H uman Resources and Management employees conspired to manipulate the recruitment and selection process for advertised vacancies as a GS -12 ADR Mediator under vacancy announcements (D14- OFP-1095443- 085-TMD and D14- OFP-1183231- 132- TMD) to prevent my considera tion and selection as a top qualified candidate. My contention is evidence by the following events: . . . . He then identified specific individuals and five events: the cancellation of the Houston vacancy, the cancellation of the Baltimore vacancy, h is non- selection for the New York vacancy, the alleged concealment of the location of the Seattle vacancy, and the alleged improper processing of his complaint. The Agency accepted Complainant’s complaint for investigation on January 29, 2015. In a February 7, 2015, e -mail to the OEO Deputy Director, Complainant objected to the acceptance letter’s use of the phrase “unknown EEOC management officials” and questioned why the Agency had provided copies of the letter to several management officials. The OE O Deputy Director replied on February 9 that the phrase “unknown EEOC management officials” came from Complainant’s formal complaint, that Complainant would have an opportunity during the investigation to ensure that all officials were identified correctly , and that the Agency notifies the affected offices when a complaint is accepted to ensure that the offices retain relevant documentation. In a February 13, 2015, e -mail to the OEO Deputy Director, Complainant argued that the acceptance letter inappropriately omitted the names of responsible management officials and relevant information that he had mentioned in his January 20, 2015, letter. He stated that he wanted to receive copies of all management officials’ statements so that he could provide a rebutt al 12 0120162639 statement. In addition, he repeated the arguments that he made in his January 20, 2015, letter to the OEO Director. In a March 3, 2015, email to Complainant, the EEO Investigator attached an “affidavit in question form” and asked Complainant to complete the affidavit by March 12, 2015. The form reiterated the accepted issues and asked such questions as when and how Complainant applied for the positions, what his qualifications were, whether he knew who the selecting officials and selectees were, why he believed that the Agency subjected him to discrimination based on disability and reprisal, and whether he wished to provide any other information or documents. In a March 4, 2015, e -mail to the OEO Deputy Director, Complainant noted that OEO Deputy Di rector had not replied to his February 13 e -mail. He alleged that it was a conflict of interest for the Agency EEO Investigator to investigate his complaint. In addition, Complainant argued that the EEO Investigator had given him “an affidavit that refle cts only . . . generic and incorrect claims” rather than specific claims that identified management officials. The OEO Deputy Director replied on March 4, 2015. She stated that Agency mediators work in the field offices and are not assigned to mediate internal EEO claims, that none of the Agency’s EEO officials had any involvement in Complainant’s substantive claims, and that there was no conflict of interest. She also stated that the affidavit gave Complainant an opportunity to support his claim and to identify the responsible management officials, that the EEO Investigator might identify additional officials during the investigation, that the Agency would provide a summary of management officials’ statements to him for rebuttal purposes, and that he w ould receive copies of all statements after the	Jacinto Q.,1 Complainant, v. Janet Dhillon , Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 0120162639 Agency No. 2014-0041 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commiss ion), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 11, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitatio n Act), as amended , 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.2 ISSUES PRESENTED The issues presented are: (1) whether the Agency processed Complainant’s complaint improperly and (2) whether the Agency discriminated against Complainant on the basis of disability and in reprisal for prior protected EEO activity when it did not select him for a GS-0301- 12 ADR Mediator position. 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 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC) is both (1) the respondent Agency and (2) the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent party. In all cases, the Commission its adjudicatory capacity operates independently from those offices charged with in -house processing and resolution of discrimination complaints. 2 0120162639 BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On October 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability and in re prisal for prior protected EEO activity. In its Notice of Acceptance, the Agency defined the accepted issues as follows: (1) on August 18, 2014, Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14-OFP-1095443- 085-TMD, which advertised vacant positions located in Baltimore, Maryland; New York, New York; Houston, Texas; and an “unspecified” location, which later was identified as Seattle, Washington; (2) Complainant was not selected for the GS -0301- 12 ADR Mediator position advertised under Job Announcement No. D14- OFP-1183231- 132-TMD, which advertised vacant positions located in Miami, Florida, and Philadelphia, Pennsylvania; and (3) unknown EEO management and Human Resource officials, including a Human Resources Specialist (HRS), (a) conspired to manipulate the recruitment and staffing for ADR Mediator positions; (b) conspired to cancel and move the advertised vacancy in the Houston, Texas, office to the Miami, Florida, office; (c) conspired to cancel and move the advertised vacancy in the Baltimore, Maryland, office to the Philadelphia, Pennsylvania, office; and (d) failed to follow established procedures for the receipt and administration of applications received from applicants with disabilities. Further, the Agency noted that Complainant also claimed that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when unknown EEOC management officials authorized and admin istered EEO counseling designed to intimidate and deter him from filing a formal EEO complaint. The Agency stated that it would process the claims concerning the processing of his complaint pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110). Specifically, Complainant alleged that: (1) the EEO Counselor failed to identify herself or her role when she initially contacted Complainant, causing an unnecessary delay in the start of EEO counseling; 3 0120162639 (2) the EEO Counselor initially refused to respond via e -mail to Complainant’s specific inquiries regarding his initial contact; (3) the EEO Counselor restricted the amount of time available for EEO counseling by not promptly responding to Complainant’s e -mails. It was only when Complainant involved the EEO Counselor’s supervisor, the Deputy Director of the Office of Equal Opportunity (OEO), that the EEO Counselor understood that Complainant could submit communications in writing; (4) the EEO Counselor recorded Complainant’s claims and bases incorrectly; (5) the EEO Counselor conducted an insufficient limited inquiry, closed out EEO counseling prematurely, and did not ask whether Complainant would agree to an extension of the EEO counseling to conduct a sufficient limited inquiry ; (6) the EEO Counselor failed to identify the name and title of any involved EEOC management official or any documents reviewed during EEO counseling; (7) the EEO Counselor failed to provide Complainant with the specific reasons why he was not selected by the EEOC responsible management officials or the reasons why the positions were cancelled and moved to another location; and (8) the EEO Counselor failed to identify any resolving official or any attempts at resolutio n during the counseling; Complainant subsequently also alleged that that the Agency subjected him to reprisal for the instant complaint by not framing his allegations accurately in the Notice of Acceptance. On April 10, 2014, the Agency announced six vacancies for GS -0301- 12 ADR Mediator positions (Job Announcement No. D14- OFP-1095443- 085-TMD). The vacancy announcement listed the following vacancy locations: Kansas City, Kansas; Baltimore, Maryland; Buffalo, New York; New York, New York; Houston, Te xas; and “More Locations (1).” The “More Locations” reference had a link that, according to HRS, showed the location to be in Seattle, Washington. The record contains a five -page printout of the announcement; page 5 of the printout lists the sixth locati on as Seattle. The announcement period closed on April 18, 2014. In an April 21, 2014, e -mail to HRS, Complainant stated that he was a 30% or greater disabled veteran, that he had attempted to apply for the ADR Mediator vacancies prior to the closing date but had been unable to do so, and that he would like to be considered for the position under the Schedule A hiring authority. 3 Complainant did not explain why he had been unable to apply for 3 The “Schedule A” hiring authority is a non- competitive appointment authority used for hiring applicants with disabilities. Although federal agencies are authorized to use Schedule A hiring 4 0120162639 the vacancies within the allotted time. HRS replied that Co mplainant should e -mail the required documents to her and should identify the locations for which he wanted to apply. Complainant submitted the documents to HRS on April 21, 2014; identified the Baltimore, New York, and Houston locations; and reiterated his interest in applying under the Schedule A hiring authority. On July 11, 2014, HRS sent the Schedule A certificate to the District Resource Manager (DRM) of the Houston District Office (Houston DO) and notified Complainant that his application had been referred to Houston for consideration under Schedule A. Complainant responded on July 14, 2014, that he also wanted to be considered for the Baltimore and New York vacancies, and HRS replied that she would issue notification letters as soon as she finis hed reviewing the applications. On July 15, 2014, HRS sent Schedule A certificates to the DRMs of the New York District Office (NYDO) and Philadelphia District Office (Philadelphia DO) 4 and the corresponding notification letters to Complainant. Complainant asked if the Agency was considering him under all hiring authorities, including the non- competitive Veterans Employment Opportunities Act (VEOA), Reinstatement Eligible, and 30% or More Disabled Veteran authorities. HRS notified the DRMs of the New Y ork, Houston, and Philadelphia District Offices that Complainant wanted to be considered under the four non- competitive authorities, provided the non- competitive certificates and Complainant’s application package to the DRMs, and sent notification letters to Complainant. The Philadelphia DRM sent HRS a July 16, 2014, e -mail stating that the Agency had moved the Baltimore vacancy to the Philadelphia District Office. She stated in her affidavit that the Philadelphia District Director asked the Agency’s Assistant Director of the Office of Human Resources to move the vacancy to Philadelphia. According to the Philadelphia DRM, the Philadelphia office had a greater need for a mediator because two mediators had retired. The Philadelphia District Director stated in his affidavit that the Agency’s Assistant Director of the Office of Human Resources made the decision to cancel the Baltimore vacancy and that management officials in the Baltimore Field Office had no involvement in the cancellation decision. In a July 22, 2014, memorandum to the NYDO Director, the NYDO ADR Coordinator stated that he, the NYDO Deputy Director, and the Director of the Buffalo Local Office interviewed seven candidates from the Best Qualified and Merit Promotion certificates for the New York City vacancy. 5 They unanimously recommended a candidate (S1) who was on the Best Qualified authority when considering applicants with disabilities, the use of this authority is not mandatory. See generally 5 C.F.R. § 213.3102(u). 4 The Philadelphia DRM served the Baltimore Field Office, which falls under the jurisdiction of the Philadelphia District Office. 5 The NYDO Director, NYDO Deputy Director, and NYDO ADR Coordinator stated in their affidavits that the Director of the Buffalo Local Office was a member of the interview panel. The Director of the Buffalo Local Office stated in his affidavit that he “was not involved in the selection of the candidate” for the NYDO and that he “was not part of the interviewing panel for the vacancy in question.” 5 0120162639 certificate. According to the memorandum, S1 “had a good interview,” received “an extremely strong reference from his former” supervisor, “is a licensed attorney and has an LLM in Dispute Resolution.” The New York DRM offered the position to S1 on July 25, 2014, and he accepted the offer. In his affidavit, the NYDO Director stated that he selected S1 based on the recommendation of the interview panel. The NYDO Deputy Director stated in her affidavit that the panel interviewed candidates from the Best Qualified and Merit Promotion certificates because “those lists offered the largest number of best -qualified applicants.” She also stated that S1 was the best candidate because he had experience working with the New York District Office’s ADR/Mediation program, was familiar with the Office’s mediation approaches, and had “focused his professional development on mediation practice.” The NYDO ADR Coordinator stated in his affidavit that S1 had been an intern in the NYDO, had experience in the Office’s ADR Unit, and “was very focused on a mediation career.” In a July 23, 2014, e -mail to the Director of the Office of Field Programs (OFP) and a Supervisory Program Analyst in OFP, the Houston District Director stated that he had offered the Houston position to a GS -13 Mediator from the Agency’s Miami District Office (Miami DO) who had applied for the job in Houston. The District Director asked whether he coul d accept the GS -13 Mediator as a “reassignment eligible” candidate and have the vacancy transferred to the Miami District Office. The Supervisory Program Analyst replied that the Mediator could be reassigned and that she would try to transfer the vacancy. The OFP Director approved of the request on July 24, 2014. The Houston District Director stated in his affidavit that he appointed the Houston ADR Supervisor, the Houston Deputy Director, and the Director of the New Orleans Field Office to a selection panel. He and the panel reviewed the DEU and Merit Promotion certificates and realized that an EEOC employee (S2) from the Miami District Office was on the certificates. They reviewed S2’s application package and agreed to select him as the best qualifi ed applicant. Because S2 would have had to accept a downgrade if he were chosen from one of the certificates, the Houston District Director contacted the Miami District Director to inquire about reassigning S2 to the Houston DO. According to the Houston Director, the two district offices, OFP, and the Office of Human Resources agreed to reassign S2 to the Houston DO and to give the Miami DO authorization to hire a mediator. The Miami District Director stated in his affidavit that he had no information about the cancellation of the Houston vacancy. He also stated that he was aware that the Miami DO received a Mediator position from the Houston DO in exchange for the transfer of a Miami DO Mediator to the Houston DO. On August 5, 2014, the Agency announced two vacancies for GS -0301- 12 ADR Mediator positions in Miami and Philadelphia (Job Announcement No. D14- OFP-1183231- 132-TMD). The vacancy announcement closed on August 13, 2014. 6 0120162639 In an August 6, 2014, cancellation letter that HRS e -mailed to Complainant, HRS stated that the Agency had cancelled the Baltimore vacancy and relocated it to Philadelphia. She provided the new vacancy announcement number (Job Announcement No. D14- OFP-1183231- 132-TMD) and stated, “Applicants who previously applied must RE -APPLY.” In response, Complainant asked why the Agency had cancelled the vacancy. HRS replied on August 11, 2014, that the Philadelphia District Office made the decision to move the vacancy to Philadelphia. In addition, she informed Complainant that the Agency reassigned the Miami ADR Mediator to Houston and moved the Houston vacancy to Miami. On August 12, 2014, Complainant asked HRS for the contact information of the Agency employee responsible for receiving discrimination complaints. HRS provided the names and telephone numbers of two individuals, including an “Equal Employment Specialist, O ffice of Equal Opportunity.” Also on August 12, 2014, Complainant asked HRS about the status of the vacancies in New York, Kansas City, Buffalo, and the “uns tated location.” HRS replied that that Agency had made a selection for the Seattle position but not for the other positions. Complainant then asked how the decision to move the vacancies to Philadelphia and Miami affected his application, whether he automatically would be considered for the two vacancies, whether he would have to reapply for the vacancies, and whether the Agency had selected, reassigned, or detailed candidates to fill the vacancies. HRS replied that the Baltimore cancellation letter stat ed that he would have to reapply but, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Philadelphia location. She likewise told him that, because he had applied based on non- competitive authorities, she would automatically consider his application if he was interested in the Miami location. HRS stated that the Agency had not selected, reassigned, or detailed candidates for the vacancies. In an August 14, 2014, e -mail to HRS, Complainant asked who made the decisions to cancel the Baltimore and Houston vacancies, why the Agency made the decisions, and how many ADR Mediators were assigned to the Baltimore, Philadelphia, Houston, and Miami offices. HRS informed Complai nant that she had forwarded his questions to her supervisor. On August 15, 2014, HRS replied that “[m]anagement made the decision[s]” to cancel and transfer the vacancies and that Complainant could obtain information about the numbers of ADR Mediators by filing a Freedom of Information Act (FOIA) request. Complainant sent HRS an August 18, 2014, e -mail asserting that he had a right to know why the Agency had not selected him for the vacancies. He noted that the Agency had cancelled two of the vacancies for which he had applied, that the cancellations occurred after he submitted his application and was found to be qualified for the position, and that the Agency had not cancelled any of the vacancies for which he had not applied. Complainant alleged, “It now appears that you may be part of a concerted effort to impede my ability to obtain employment in advertised vacant positions that I am extremely qualified for and I should not have to take legal action to obtain information that should be available upon request.” Also on August 18, 2014, Complainant contacted the Equal Employment Specialist, and stated that he wanted to file an EEO complaint. 7 0120162639 On August 27, 2014, HRS notified the Philadelphia and Miami District Directors and DRMs that Complainant wanted to be considered for the vacancies under the four non- competitive authorities. She provided the non- competitive certificates and Complainant’s application package. HRS sent the notification letters to Complainant on September 3, 2014. In a September 4, 2014, response to HRS, Complainant asked whether there were certificates of eligibility on which he was not listed and, if so, why. HRS replied that the Agency’s automated system (USAStaffing) had generated Delegated Examining Unit (DEU) and Merit Promotion certificates and that Complainant’s name was not on those certificates. Complainant responded that his name should have been on the DEU and Merit Promotion certificates if he was eligible under those authorities. He stated that he never t old HRS that he wanted to be considered only for a non- competitive appointment. Complainant argued , If it was necessary to extend the time for me to apply because I needed to submit my application online via USA Staffing, you should have advised me because there was plenty of time to add my name and/or reopen the vacancy so that I could apply and not dis rupt the staffing and recruitment process. . . . It appears that there may be a coordinated effort to conduct recruitment for the position of ADR Mediator in a manner designed to excluded me from consideration, although I am extremely qualified to fill the position. Complainant sent HRS a September 12, 2014, e -mail noting that HRS had not responded to his September 4 communication and asking if he should assume that his name was not added to the DEU and Merit Promotion certificates. On September 17, 2014, HRS replied, Your name was referred to the selection official based on your prior emails. You asked if you would be automatically referred to the ADR Mediator vacancies in Philadelphia and Miami. So I referred your name to the selecting official as I referred it for the prior vacancy. Complainant responded, I never requested only to be considered under non- competitive appointing authorities for the ADR Mediator positions at issue. I requested to be considered under all applicable appointing authorities/methods. If you were not clear, then you should have made me aware and explained the process fully. Furthermore, I did not request consideration in a different manner for the Philadelphia vacancy (cancelled Baltimore vacancy) because I was n ot aware that I could request consideration under different appointing authorities or that the vacancy announcement would be reannounced and changed to generate additional certificates of eligibility, DEU and Merit Promotion. None of the other advertised vacancies for the ADR Mediator were reannounced and/or changed. 8 0120162639 In a September 6, 2014, e -mail to HRS, the Philadelphia DRM stated that the office had chosen an internal candidate from the Merit Promotion certificate for the position. The Philadelphia District Director stated in his affidavit that the office did not conduct interviews and that he was the “Approving Official” for the Philadelphia vacancy.6 He also stated that the selectee (S3) was the best candidate because S3 was an “excellent worker” who was dependable, could handle a large inventory, and had a “strong EEO background.” In addition, S3 had experience in mediation, counseling, negotiations, and settlements. In his affidavit, the Miami District Director stated that he assigned the Mia mi Deputy District Director, the Tampa Field Office Director, the Tampa Field Office Mediator, and the Miami District Chief Administrative Judge to the interview panel for the Miami vacancy. The panel interviewed candidates from the DEU and Merit Promotion certificates “because of the vast number of highly qualified candidates” on the certificates. According to the Miami District Director, the interview panel ranked the selected candidate (S4) the highest among the candidates. S4 “demonstrated an in -depth knowledge about the functioning, background and training of an EEOC mediator;” had worked with Agency mediators through an Agency mentorship program; and “presented strong background and training as a lawyer, certified mediator, and EEOC investigator.” In his Initial Interview Narrative, which he signed on August 28, 2014, Complainant alleged that the Agency discriminated against him on the basis of disability when it did not select him for any of the vacancies advertised in the April 10, 2014, vacancy announcement. He asserted that management and human resources officials manipulated the selection process to exclude him. Complainant stated, “Although I did not share my specific disability, I made human resources and management aware that I had a disability when I requested to be considered for an appointment under [Vacancy Announcement No. D14- OFP-1095443- 085-TMD] as a Schedule A (targeted disability) and as a Disabled Veteran.” Complainant also stated that he “applied competitively and non-competitively, as a status candidate, Schedule A, reinstatement eligible , VEOA, and Disabled Veteran.” Complainant noted that he sent e -mails to HRS regarding the vacancies. He also noted that he asked HRS who had decided to cancel the vacancies in the Baltimor e and Houston offices and to transfer the vacancies to the Philadelphia and Miami offices. According to Complainant, HRS refused to identify the decision- maker or to explain the reaso ns for the actions. In signed, written responses to the EEO Counselor ’s interview questions, Complainant alleged that the Agency cancelled the vacancies to prevent him from being selected for the positions. He also alleged that the Agency “concealed the location of the vacancy in the Seattle Office” to prevent him from applying for the position. Complainant declined to disclose whether he had a physical or mental disability and asked that his disability be identified as “unspecified.” He argued that, because he applied for the positions as a Schedule A and disabled -veteran applicant, human resource and management officials were aware that he had a disability. 6 In her affidavit, HRS identified the Philadelphia District Director as the “Selecting Official.” 9 0120162639 Procedural Background In an August 18, 2014, e -mail to the Agency Equal Employment Specialist whose name HRS had provided and who served as the EEO Counselor, Complainant stated that he wanted to file an EEO complaint regarding a non- selection. The EEO Counselor replied on Tue sday, August 19, and asked Complainant to let her know when he would be available for a discussion on Wednesday through Friday. Complainant responded on Friday, August 22, 2014. In his e -mail, Complainant asserted that he had “applied competitively and n on-competitively” for an ADR Mediator position under Job Announcement No. D14- OFP-1095443- 085-TMD. He alleged that the Agency subjected him to disability -based discrimination when Human Resources and Management officials allegedly manipulated the selectio n process by cancelling the Baltimore and Houston vacancies after learning that he was eligible for a non -competitive appointment. He asked the EEO Counselor to call or e -mail him if she needed additional information. On Monday, August 25, 2014, Complainant e -mailed the EEO Counselor, stated that she had not replied to the voice -mail message that he left her on August 22, asserted that it was taking too long to complete his initial EEO contact, and asked for the contact information of her supervis or. The EEO Counselor replied that she had been out of the office and asked if Complainant was available to discuss his complaint at 2:00 p.m. that day. In his response, Complainant asserted that his August 24 e -mail provided sufficient information and a gain asked for the contact information of the EEO Counselor’s supervisor. The EEO Counselor replied that she needed additional information from Complainant, that an initial interview was part of the complaint process, that she had called and left a messag e for him after receiving his voice -mail message, that he could provide an alternative time and date to discuss his complaint, and that she would forward his e -mail to the OEO Deputy Director. She subsequently asked Complainant to provide his home address and to indicate the law under which he was filing his complaint, whether he had a representative, and whether h e wished to remain anonymous. In an August 26, 2014, e -mail to the EEO Counselor, Complainant alleged that the EEO Counselor’s behavior was “ very troubling,” that some of the information she requested was not required during an initial interview, that “the applicable law is not a factor during the informal process,” and that she was trying to impede his ability to articulate his claim. He further asserted that, because she had not identified herself as an EEO Counselor, he was not aware that she was engaging in anything beyond an initial contact. He claimed that, “[a]s an EEO professional with many years of experience and knowledge regarding t he processing of” federal -sector complaints, he was not aware of any requirement that the initial contact and interview be conducted orally. He asked her to confirm whether she was acting as an EEO Counselor and to provide contact information for her firs t- and second- level supervisors. In addition, Complainant stated that he would submit a narrative to her and she could let him know if she had any questions about it. The OEO Deputy Director replied on August 26, 2014, and stated that Complainant’s Aug ust 18 e-mail to the “Equal Employment Specialist, who serves as the agency’s EEO Counselor” was sufficient to begin the counseling process. The OEO Deputy Director also stated that she was the 10 0120162639 EEO Counselor’s first -level supervisor and the OEO Director w as the second- level supervisor. She noted that an individual’s “initial contact begins the counseling process” and that, after the initial contact, the EEO Counselor sets up a meeting to discuss the individual’s claims. She explained that the Agency’s pr ocess might be different from the process that Complainant had experienced at his agency and asked Complainant to comply with the EEO Counselor’s request for a meeting. Complainant responded that he was not legally required to engage in an oral interview, that he preferred to communicate about his complaint in writing, and that the EEO Counselor could forward notices to him via e -mail. He asserted that “there is no miscommunication or misunderstanding on [his] part." The EEO Counselor sent interview questions to Complainant on August 28, 2014, and Complainant submitted his answers the next day. Complainant subsequently asked whether the EEO Counselor had spoken with management and whether management wished to discuss a resolution to his complaint. The EEO Counselor replied that the Agency cancelled the Houston vacancy because a Mediator had transferred to the position from Miami, that the Agency selected a candidate for the New York vacancy, that the Baltimore vacancy was cancelled and moved to Philade lphia, that the Agency placed someone in the Seattle position through a settlement agreement, and that HRS stated that she forwarded certificates and application packages for non - competitive authorities to the locations that Complainant had listed. She s ubsequently informed Complainant that the Agency chose an internal candidate for the Philadelphia vacancy. In a September 15, 2014, letter to Complainant, the EEO Counselor confirmed that she had conducted an initial interview with Complainant on August 28, 2014. She stated that Complainant alleged that the Agency subjected him to disability -based discrimination when it did not select him for any of the ADR Mediator vacancies under Job Announcement No. D14- OFP-1095443- 085- TMD. On September 16, 2014, the EEO Counselor sent Complainant an e -mail stating that the counseling process had ended. She issued a Notice of Right to File a Formal Complaint (NRTF) that stated that Complainant had alleged disability -based discrimination when he was “not selected for the GS -12 ADR Mediator position advertised under Vacancy Announcement ID (D14- OFP- 1095443- 085-TMD) for the following offices: Miami, Baltimore, Houston, Philadelphia, and New York.” In a September 18, 2014, e -mail response, Complainant asserted that the EEO Counselor’s contact with HRS was the sole extent of the Counselor’s inquiry and that there had been no efforts to resolve his complaint during the informal process. He asked whether HRS or other management officials had provided any documents concerning the matter. The EEO Counselor replied on September 21 that she conducted inquiries with HRS, the Philadelphia and Miami DRMs, and the NYDO Director; that she learned during the inquiries that the Agency had filled the vacancies; and that the documents she received included vacancy announcements, Complainant’s application package, the certificates on which his name appeared, and internal e -mails. She reminded Complainant that “the counseling process is a limited process and not intended to duplicate an investigation.” Complainant responded on October 7, 2014, and asserted that the counseling “was woefully inadequate and biased.” He alleged, among other things, that the EEO Counselor did not conduct a sufficient inquiry, did not provide him with suffic ient information, and did not address whether Agency officials wanted to resolve his claim. 11 0120162639 In an October 9, 2014, letter to the OEO Director, Complainant asserted that the EEO Counselor had mischaracterized his claim. He filed a formal EEO complaint o n October 10, 2014. In an October 17, 2014, letter to the OEO Director, Complainant expressed his dissatisfaction with the processing of his informal complaint. He alleged that the EEO Counselor conducted counseling in a manner designed to impede his abi lity to file a formal complaint. Complainant raised several specific allegations, which the Agency summarized in its January 29, 2015, acceptance letter. In January 12, 15, and 20, 2015, e -mails to Complainant, an Equal Employment Specialist, who served as the EEO Investigator, asked Complainant to clarify his allegation that unknown management officials had intimidated and deterred him from filing a formal complaint. Complainant sent a January 20, 2015, letter to the OEO Director and identified severa l Agency management officials. In addition, he alleged that the EEO Counselor conducted biased counseling by “(1) not wanting to communicate in writing, (2) waiting until most of the EEO Counseling period had expired to begin EEO Counseling, and (3) inter viewing responsible management officials after EEO Counseling had closed even though they were available prior to the close of EEO Counseling.” Asserting that “ADR Mediators likely work very closely with EEOC EEO employees,” Complainant argued that it pos ed a conflict of interest to have Agency EEO employees handle his complaint. He identified his claim as follows: I was subjected to illegal discrimination on the basis of disability (Schedule A - targeted) and reprisal for prior EEIO activity when EEOC H uman Resources and Management employees conspired to manipulate the recruitment and selection process for advertised vacancies as a GS -12 ADR Mediator under vacancy announcements (D14- OFP-1095443- 085-TMD and D14- OFP-1183231- 132- TMD) to prevent my considera tion and selection as a top qualified candidate. My contention is evidence by the following events: . . . . He then identified specific individuals and five events: the cancellation of the Houston vacancy, the cancellation of the Baltimore vacancy, h is non- selection for the New York vacancy, the alleged concealment of the location of the Seattle vacancy, and the alleged improper processing of his complaint. The Agency accepted Complainant’s complaint for investigation on January 29, 2015. In a February 7, 2015, e -mail to the OEO Deputy Director, Complainant objected to the acceptance letter’s use of the phrase “unknown EEOC management officials” and questioned why the Agency had provided copies of the letter to several management officials. The OE O Deputy Director replied on February 9 that the phrase “unknown EEOC management officials” came from Complainant’s formal complaint, that Complainant would have an opportunity during the investigation to ensure that all officials were identified correctly , and that the Agency notifies the affected offices when a complaint is accepted to ensure that the offices retain relevant documentation. In a February 13, 2015, e -mail to the OEO Deputy Director, Complainant argued that the acceptance letter inappropriately omitted the names of responsible management officials and relevant information that he had mentioned in his January 20, 2015, letter. He stated that he wanted to receive copies of all management officials’ statements so that he could provide a rebutt al 12 0120162639 statement. In addition, he repeated the arguments that he made in his January 20, 2015, letter to the OEO Director. In a March 3, 2015, email to Complainant, the EEO Investigator attached an “affidavit in question form” and asked Complainant to complete the affidavit by March 12, 2015. The form reiterated the accepted issues and asked such questions as when and how Complainant applied for the positions, what his qualifications were, whether he knew who the selecting officials and selectees were, why he believed that the Agency subjected him to discrimination based on disability and reprisal, and whether he wished to provide any other information or documents. In a March 4, 2015, e -mail to the OEO Deputy Director, Complainant noted that OEO Deputy Di rector had not replied to his February 13 e -mail. He alleged that it was a conflict of interest for the Agency EEO Investigator to investigate his complaint. In addition, Complainant argued that the EEO Investigator had given him “an affidavit that refle cts only . . . generic and incorrect claims” rather than specific claims that identified management officials. The OEO Deputy Director replied on March 4, 2015. She stated that Agency mediators work in the field offices and are not assigned to mediate internal EEO claims, that none of the Agency’s EEO officials had any involvement in Complainant’s substantive claims, and that there was no conflict of interest. She also stated that the affidavit gave Complainant an opportunity to support his claim and to identify the responsible management officials, that the EEO Investigator might identify additional officials during the investigation, that the Agency would provide a summary of management officials’ statements to him for rebuttal purposes, and that he w ould receive copies of all statements after the conclusion of the investigation. Finally, the OEO Deputy Director noted that Complainant’s concerns about the processing of his complaint would be included in the complaint file. Complainant continued to disagree with the Agency’s characterization of his claims and to express dissatisfaction with the complaint process. In a March 16, 2015, e -mail to the OEO Deputy Director, Complainant alleged that the OEO Director, OEO Deputy Director, and EEO Investigator retaliated against him by refusing to record his claims accurately. He asserted that, because he now had identified them as responsible management officials, their involvement in the processing of his complaint created a conflict of interest. The OEO Deputy Director replied that the Agency was investigating his complaint in accordance with the applicable regulations. She stated that Complainant’s definition of his claim “materially addresses the same claim that was accepted” and that he coul d clarify as well as support his claim in his affidavit. She reiterated that the complaint file would include Complainant’s concerns about the processing of his complaint. On March 11, 2015, Complainant requested and received an extension of time for submitting his affidavit until March 16, 2015. He stated that he had been unable to complete the affidavit “due to illness and other obligations.” On March 18, 2015, the EEO Investigator asked Complainant about the status of his affidavit. He responded on March 20 that he had been waiting to learn if the Agency would revise the characterization of his claims, that the EEO Investigator had sufficient information to begin the investigation, and that he would submit an affidavit and rebuttal statement after t he Investigator gave him an opportunity to review the affidavits provided by management witnesses. Complainant stated that, if necessary, he would grant the Investigator an extension of 13 0120162639 time within which to complete the investigation. On March 23, the EE O Investigator requested an extension until May 22, 2015, for completion of the investigation. Complainant responded that he would grant an extension only if the Agency’s Assistant Legal Counsel for Freedom of Information Act Programs would provide him “w ith all of the responsive documents regarding [his] FOIA request . . .without redacting unnecessary information.” The EEO Investigator replied on March 26 that, because Complainant was not willing to grant an extension, she would issue the Report of Inves tigation (ROI) on April 8, 2015, and would give Complainant 15 days after receipt of the ROI within which to submit a rebuttal. Complainant subsequently informed the EEO Investigator that he would grant an extension until May 22, 2015. He asked the Inves tigator if she would provide him with a copy of her Investigative Plan, witness statements, and the selectees’ application materials. The EEO Investigator replied that she would give Complainant an opportunity to review management’s responses and to submi t a rebuttal and that she would include additional information in the ROI. On April 23, 2015, the EEO Investigator provided Complainant with a summary of management’s and witnesses’ statements and asked him to provide a rebuttal by May 6, 2015. Complainant asked the Investigator to provide additional information, including e -mails regarding the selections and vacancies, complete witness statements, application packages, certificates, and interview -panel notes and scores. The OEO Deputy Director replied that the Investigator was in training, that investigators did not provide aff idavits and other evidence prior to the conclusion of an investigation, that the Agency provides a summary of management’s responses for rebuttal purposes, and that Complainant would receive the entire record at the conclusion of the investigation. On M ay 6, 2015, Complainant requested an extension of time for submitting his affidavit until May 13, 2015, because of “unforeseen personal circumstances.” The EEO Investigator granted his request and asked to extend the time for completing the investigation until June 5, 2015. Complainant agreed to the extension. On May 14, 2015, the EEO Investigator asked Complainant for the status of his affidavit. He responded on May 15 and asked the Investigator to hold the investigation in abeyance for two weeks because he was “currently experiencing medical issues that require immediate attention.” The Investigator agreed to extend the date for the affidavit until May 29 and noted that this would extend the investigation until June 19, 2015. On June 2, 2015, Complai nant informed the Investigator that he had “not fully recovered from the medical issues” that had prevented him providing his affidavit. He asked for an additional two- week extension. The EEO Investigator replied that OEO needed to issue the ROI but woul d allow Complainant to submit an affidavit up to two weeks after June 19, 2015. Complainant never submitted an affidavit or a rebuttal statement. By letter dated June 15, 2015, the Agency provided Complainant with a copy of the ROI and notice of his ri ght to request a hearing before an EEOC Administrative Judge or a final agency decision. According to the Agency, Complainant requested a final agency decision. 14 0120162639 Final Agency Decision In its final decision, the Agency concluded that Complainant did not establish that it discriminated against him as alleged. The Agency found that Complainant did not establish prima facie cases of discrimination based on disability or reprisal. The Agency further found that it articulated legitimate, nondiscriminator y reasons for its actions and that Complainant did not show that the articulated reasons were a pretext for discrimination. For example, the Agency noted that the Miami, Philadelphia, and New York officials selected candidates from competitive certificates because the certificates offered a larger number of candidates than the non- competitive certificates. It found no evidence that discriminatory or retaliatory animus motivated the Agency’s decision to use only the competitive certificates. Similarly, the Agency found no evidence to support Complainant’s assertion that the Agency failed to consider him for the positions because he notified HRS that he wanted to be considered through non-competitive authorities. Further, the Agency concluded that the evidence did not support Complainant’s claims that Agency officials conspired to exclude him from the ADR Mediator positions by cancelling and moving vacancies or by excluding him from the competitive certificates. The Agency found that there was no merit to Complainant’s claim of improper complaint- processing. In that regard, the Agency stated that the EEO Counselor “took all reasonable measures to ensure that his complaint was timely filed,” that her failure to identify herself as an EEO Counselor in he r initial e -mail to Complainant did not delay or negatively affect the counselling, that the OEO Deputy Director’s August 26, 2014, e -mail to Complainant explained the initial- contact process, and that the EEO Counselor responded promptly to Complainant’s inquiries. The Agency noted that the EEO Counselor’s “generic statement” of Complainant’s claim in the Notice of Right to File a Formal Complaint did not include all of the information that Complainant provided in his August 2014 submissions. It also not ed, however, that OEO used all of the information that Complainant provided when it drafted its Notice of Acceptance. As a result, the Agency found that OEO cured any harm that Complainant may have suffered. The Agency further found that the EEO Counselor conducted a sufficient inquiry and that she gave Complainant the names of several management witnesses. Noting that Complainant received the names of additional officials after filing a FOIA request and that the EEO Investigator interviewed all of the r esponsible management officials whom Complainant identified, the Agency stated that the inclusion of this information in the investigation cured any harm that Complainant may have suffered. In addition, the Agency found that there was no merit to Complainant’s claim that the EEO Counselor did not provide him with the reasons for his non- selection and the cancellation of vacancies. With respect to Complainant’s claim that the Counselor failed to identify resolving officials or attempts at resolution, the A gency stated that the selecting officials were the responsible management officials and “would also have been the resolving officials if they thought a resolution could be reached.” Finally, the Agency found that the Notice of Acceptance adequately framed Complainant’s claims. 15 0120162639 The Agency concluded that Complainant did not identify any harm that he suffered as a result of the Agency’s actions regarding the processing of his complaint and did not show that the Agency’s actions affected the outcome of the complaint. The Agency “dismissed” Complainant’s improper - processing complaint for failure to state a claim. In its Conclusion, the Agency also “dismissed” Complainant’s claim that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity. CONTENTIONS ON APPEAL Complainant did not file a statement on appeal.7 The Agency argues that its final decision correctly rejected Complainant’s claims of discrimination and improper complaint- processing. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Manage ment Directive for 29 C.F.R. Part 1614, at Chap . 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision make r,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the la w”). ANALYSIS AND FINDINGS As a preliminary matter, we note that, in its final decision, the Agency stated that it was dismissing Complainant’s claims of discrimination and improper complaint- processing. The Agency, however, addressed the merits of Complainant’s allegations. Rathe r than stating that it was dismissing Complainant’s claims, the Agency should have stated that it found that it had not discriminated against Complainant and had not processed his complaint improperly. Given that the Agency adequately discussed and addres sed the merits of Complainant’s claims, its use of the term “dismiss” was harmless error. Complaint Processing When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns, and any actions the Agency took to resolve the 7 In a September 9, 2016, e -mail to the Commission’s Office of Federal Operations (OFO), Complain ant noted that the brief in support of his appeal was due on September 15 and requested a 30-day extension of the time within which to file a brief. He did not give a reason for his request. OFO granted Complainant a 10- day extension until September 30, 2016. Complainant , however, did not file a brief in support of his appeal. 16 0120162639 concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency’s reason(s) for not taking any action. EEO MD-110 Chapter 5, IV.A.12 and IV.D. (Aug. 3, 2015). In this case, Complainant has alleged that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity by processing his complaint improperly. The record does not support Complainant’ s allegations. Although Complainant might have had a clearer understanding of the EEO Counselor’s role if she had expressly identified herself as a Counselor, her failure to do so did not delay the EEO process. As the OEO Deputy Director noted in her A ugust 26, 2014, e -mail to Complainant, Complainant’s August 18, 2014, e -mail to the EEO Counselor began the counseling process. Complainant engaged in extensive e -mail correspondence with the OEO Deputy Director and the EEO Counselor. Given the extent of the e- mails and the dates and times that Complainant sent them, we find that OEO representatives replied to his inquiries in a timely manner. Even though the OEO representatives asked Complainant to participate in an oral interview, they acceded to his request for written communications. In addition, we agree with the Agency’s determination that the Notice of Acceptance cured any harm that Complainant might have suffered as a result of the NRTF’s “generic statement” of Complainant’s claims. Further, hav ing reviewed the EEO Counselor’s Report, all of the communications between Complainant and OEO representatives, and the entire record, we find that the EEO Counselor conducted a sufficient inquiry into Complainant’s claims and that the EEO counseling met the requirements of 29 C.F.R. § 1614.105 and EEO MD -110 Chapter 2 (“Equal Employment Opportunity Pre -Complaint Processing). Finally, we find that the Agency accurately articulated Complainant’s allegations in the Notice of Acceptance. Having thoroughly and carefully reviewed the record, we find that the record does not establish that the Agency administered EEO counseling in a manner designed to intimidate or deter Complainant from filing a formal EEO complaint. We further find that the record does not establish that the Agency processed Complainant’s complaint improperly. Non- Selection for ADR Mediator Positions To prevail in a disparate treatment claim such as this, Complainant must satisfy the three -part evidentiary scheme fashioned by the Suprem e Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrim ination. Furnco Construction Co. v. Waters , 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas , 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a leg itimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks , 509 U.S. 502, 519 (1993). 17 0120162639 Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason mor e likely motivated the Agency. Burdine , 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. We assume for purposes of analysis only, and without so finding, that Complainant has established prima facie cases of discrimination based on disability and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not shown that the ar ticulated reasons are a pretext for discrimination. The NYDO Deputy Director stated that the interview panel considered candidates from the Best Qualified and Merit Promotion certificates because those certificates had the largest number of best-qualifi ed candidates. She and the NYDO ADR Coordinator stated that S1 had experience working in the NYDO ADR Unit and was focused on mediation. The Agency moved the Baltimore vacancy to Philadelphia because two mediators had retired from the Philadelphia District Office. The Agency chose an internal candidate who was a dependable, “excellent worker” who had mediation experience for the Philadelphia vacancy. After a mediator from the Miami District Office applied and was deemed qualified for the Houston positio n, the Agency transferred the mediator to Houston and moved the vacancy to Miami. The Miami District Director stated that the interview panel considered candidates from the Best Qualified and Merit Promotion certificates because of the large number of qualified candidates on those certificates. He also stated that S4 had worked with Agency mediators and had a “strong background and training as a lawyer, certified mediator, and EEOC investigator.” Complainant, who did not provide an affidavit, has not shown that the articulated reasons are unworthy of credence. He has not refuted the Agency’s explanation that interview panels considered candidates from the Best Qualified and Merit Promotion certifi cates because of the number of qualified candidates on those certificates. Further, he has presented no evidence that he was more qualified for the positions than were the selectees. All of the selectees had strong mediation backgrounds and experience working with the Agency’s mediation program. S2, who transferred to Houston from Miami, already was an Agency Mediator. In addition, Complainant has not shown that a discriminatory reason more likely motivated the Agency’s actions. He offers no evidence to support his allegation that the Agency cancelled the Baltimore and Houston vacancies to prevent him from being selected for the position. In addition, there is no merit to Complainant’s claim that the Agency “concealed the location of the vacancy in the Seattle Office” to prevent him from applying for the position. The vacancy announcement contained a link that identified the Seattle location. Further, the record establishes that Complainant was not on the competitive certificates for Vacancy Announcement No. D14- OFP- 1095443- 085-TMD because he did not submit an application within the established time frame. Finally, there is no evidence that the Agency manipulated the recruitment and staffing process to prevent Complainant’s consideration and selec tion. Complainant’s unsupported speculation is insufficient to establish pretext. 18 0120162639 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency did not process Complainant’s complaint improperly and that Complainant has not established that the Agency discriminated against him on the basis of disability or in reprisal for prior protected EEO activity when it did not select him for an ADR Mediator position. 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 evidenc e 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 requ est 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 Co urt within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must 19 0120162639 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 act ion, 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 cour t 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: /s/ Bernadette B. Wilson Bernadette B. Wilson Executive Officer Executive Secretariat November 27, 2019 Date	[ "411 U.S. 792", "438 U.S. 567", "450 U.S. 248", "530 U.S. 133", "509 U.S. 502", "29 C.F.R. § 1614.403(a)", "5 C.F.R. § 213.3102(u)", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.105", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29 ...	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83	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/0320170006.pdf	0320170006.pdf	PDF	application/pdf	25,075		October 14, 2016	Appeal Number: 0120180363 Background: At the time of the events giving rise to this matter, Petitioner worked as a Computer Scientist, GS-1550- 14, at the Agency’s National Institute o f Allergy and Infectious Diseases (NIAID ), Bioinformatic s and Computat ional Biosciences Branch (BCBB), in Bethesda, Maryland. Petitioner ’s first-level supervisor was the Chief, BCBB (S1). Petitioner ’s second -level supervisor was the Chief Information Offi cer (S2). Pe titioner ’s third -level supervisor was t he D eputy Director for Science Management, NIAID (S3). On January 31, 2014, Petitioner emailed an Employee Relations Specialist (ERS) and S2 about filing an EEO complaint against S1. In his email, which had the subject line “Request for assista nce,” Petitioner accused S1 of engaging in “a clear and continuing pattern of sexual and verbal abuse” against him and described alleged conduct by S1 involving sexual language, sexual innuendo, provocative ges tures, inappr opriate touching, and attempts at physi cal intimacy. Petitioner stated that he had tried his best to keep all exchanges with S1 a s least adversarial as possible but ended his email by stating: “ However, now I conclude that it is necessary to take formal a ction. Therefore [,] I am request ing the as sistance o f the Employee & Labor Relations Branch in filing an EEO complaint and/or a sexual harassment complaint against [S1].” In response, ERS emailed Petitioner with the contact information for t he EEO Office. On February 12, 2014, Petitioner con tacted the EEO Office to complain about the alleged sexual harassment. On February 20, 2014, S2 issued Petitioner a notice of proposed removal for: (1) inappropriate behavior towards his supervisor; ( 2) failure to fo llow supervisory instructions; (3) inap propriate beha vior in the workplace; and (4) making false allegations. Charges 1 and 2 cited Petitioner’s alleged conduct during a meeti ng with S1 on December 17, 2013. Charge 3 cited Petitioner’s alleged conduct du ring an encounter with a coworker later in the day on December 17, 2013. Charge 4 (five of the six specifications) 3 cited statements from Petitioner’s January 31, 2014, email a lleging sexual harassment by S1. Regarding charge 4, S2 stated in the notice t hat he did not find Petitioner’s statem ents at all cr edible. On May 8, 2014, S3 issued Petitioner a decision to remove him, effective May 16, 2014. Petitioner then filed a mixed -case appeal with the MSPB alleging that the Agency discriminate d against him on the basis of retaliation for prior protect ed EEO a ctivity when it removed him. On September 25, 2015, after a two -day hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner’s removal and finding no reta liation. Fir st, the MSPB AJ found that the Agenc y establis hed its ch arges by preponderant evidence. 3 The remaining specification cited a statement fro m Petitioner’ s January 6, 2014, email to S1 and S2. Regarding charge 4, the MSPB AJ credited S1’s hearing testimony denying the alleged sexual harassment over Petitioner’s hearing testimony about the allege d sexual harassment. In addition, the MSPB AJ de termin ed that Petitioner most likely fabricated the sexual harassment allegations as a defense to potential disciplinary action resulting from his conduct towards S1 on December 17, 2013. S econd, the MSPB A J found that Petitioner did not establish his aff irmative defense of retaliation. Specifically, the MSPB AJ found that Petitioner’s removal was warranted regardless of any protected EEO activity because the Agency had established its charges against Petit ioner and mos t of the charges were based on condu ct bef ore he engaged in any protected activity. Petitioner sought review by the full Board. On September 15, 2016, the Board issued a final order denying Petitioner’s petition. Petitioner then filed the instant petition. ARGUMENTS O N PETITION In his petition, Petitione r argues that the Agency retaliated against him when it used his January 31, 2014, email as justification for his removal. Specifically, Petitioner asserts that, because his email reques ting assistan ce in filing an EEO complaint was se nt to a ma nagement o fficial logically connected to the EEO process, it was sufficient to initiate the informal EEO process and therefore was participation. In addition, Petitioner asserts that, because the participation clause does not include a reasonabl eness standard, the s tatements in his email we re protected even if the Agency believed that they were false. Moreover, Petitioner asserts that the Agency’s use of the email to support his removal was direct evidence of r etaliation. Finally, Petitioner as serts that the Agenc y was liable for full relief because hearing testimony show ed that it would not have removed him absent the email. In its opposition, the Agency argues that Petitioner could not demo nstrate that his removal was retaliatory. Among other things, the Ag ency asserts that Petitioner’s email d id not fall within the scope of the participation clause because participation commences when an EEO Counselor is contacted. In addition, the Agency asserts that Pet itioner’s email was a threat to initia te EEO action, rather than the initiation of the EEO process itself. Further, the Agency asserts that there is a critical distinction between what i s sufficient to constitute timely contact for purpos es of 29 C.F.R. § 1614.105(a)(1) and what i s suff icient to constitute participation for purposes of Title VII’s anti -retaliation provision. Moreover, the Agency asserts that extending the definition of participation to cover the email would effectively gi ve P etitioner imm unity for deliberately fabricati ng sexual harassment allegations for the purpose of manufacturing a line of defense against discipline for other misconduct. Finally, the Agency asserts that , assuming the email would constitute participati on under the EEOC Enforcement Guidance on Retaliation a nd Related Iss ues, 4 use of the Retaliation Guidance was inappropriate because it was not issued until after the events occurred in this case. 4 EEOC Not ice No. 915.004 (Aug. 25, 2016) (Retaliation Guidance ). STANDARD OF REVIEW EEOC regulations provide that the Comm ission has jurisdiction over mixed case appeals on whic h the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the Legal Analysis: the Commission’s website. 2 Petitioner also alleged that the Agency discriminated against him on the basis of sex (mal e). The MSPB found no s ex disc rimination and Petitioner did not contest that finding in his petition.	Jarvis M.,1 Petitioner, v. Xavier Becerra, Secretar y, Department of Health and Human Services (National Inst itutes of Health), Agency. Petition No. 0320170006 MSPB No. DC -0752-14-0797-I-1 DECISION On October 14, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission a sking for rev iew of a final decision issued by the Merit S ystems Protection Board (MSPB) concerning his claim of retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 2 For the reasons stat ed below, the Commission DIFFER S with th e MSPB’ s final d ecision. ISSUES PRESENTED The issue s presented are: (1) whether Petitioner’s email to an employee relations official and a supervisory official, in which he raised allegations of sexual harassment and requested assistance in filing an E EO complai nt, wa s protected EE O participation; (2) whether Petitioner proved 1 This case has been ran domly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non- parties an d the Commission’s website. 2 Petitioner also alleged that the Agency discriminated against him on the basis of sex (mal e). The MSPB found no s ex disc rimination and Petitioner did not contest that finding in his petition. Accordingly, the Commission exercises its discretion to focus only on the issue specifically raised on appeal and will not address Petitioner’s sex discrimination claim in thi s decisi on. S ee Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ( EEO MD -110), Ch. 9, § IV.A. (Aug. 5, 2015). retaliatory disparate treatment through direct evidence when the Agency used his email, among other things, as justification for his remova l; and (3) whether the Agency established that it would have removed P etitioner absent his email. BACKGROUND At the time of the events giving rise to this matter, Petitioner worked as a Computer Scientist, GS-1550- 14, at the Agency’s National Institute o f Allergy and Infectious Diseases (NIAID ), Bioinformatic s and Computat ional Biosciences Branch (BCBB), in Bethesda, Maryland. Petitioner ’s first-level supervisor was the Chief, BCBB (S1). Petitioner ’s second -level supervisor was the Chief Information Offi cer (S2). Pe titioner ’s third -level supervisor was t he D eputy Director for Science Management, NIAID (S3). On January 31, 2014, Petitioner emailed an Employee Relations Specialist (ERS) and S2 about filing an EEO complaint against S1. In his email, which had the subject line “Request for assista nce,” Petitioner accused S1 of engaging in “a clear and continuing pattern of sexual and verbal abuse” against him and described alleged conduct by S1 involving sexual language, sexual innuendo, provocative ges tures, inappr opriate touching, and attempts at physi cal intimacy. Petitioner stated that he had tried his best to keep all exchanges with S1 a s least adversarial as possible but ended his email by stating: “ However, now I conclude that it is necessary to take formal a ction. Therefore [,] I am request ing the as sistance o f the Employee & Labor Relations Branch in filing an EEO complaint and/or a sexual harassment complaint against [S1].” In response, ERS emailed Petitioner with the contact information for t he EEO Office. On February 12, 2014, Petitioner con tacted the EEO Office to complain about the alleged sexual harassment. On February 20, 2014, S2 issued Petitioner a notice of proposed removal for: (1) inappropriate behavior towards his supervisor; ( 2) failure to fo llow supervisory instructions; (3) inap propriate beha vior in the workplace; and (4) making false allegations. Charges 1 and 2 cited Petitioner’s alleged conduct during a meeti ng with S1 on December 17, 2013. Charge 3 cited Petitioner’s alleged conduct du ring an encounter with a coworker later in the day on December 17, 2013. Charge 4 (five of the six specifications) 3 cited statements from Petitioner’s January 31, 2014, email a lleging sexual harassment by S1. Regarding charge 4, S2 stated in the notice t hat he did not find Petitioner’s statem ents at all cr edible. On May 8, 2014, S3 issued Petitioner a decision to remove him, effective May 16, 2014. Petitioner then filed a mixed -case appeal with the MSPB alleging that the Agency discriminate d against him on the basis of retaliation for prior protect ed EEO a ctivity when it removed him. On September 25, 2015, after a two -day hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner’s removal and finding no reta liation. Fir st, the MSPB AJ found that the Agenc y establis hed its ch arges by preponderant evidence. 3 The remaining specification cited a statement fro m Petitioner’ s January 6, 2014, email to S1 and S2. Regarding charge 4, the MSPB AJ credited S1’s hearing testimony denying the alleged sexual harassment over Petitioner’s hearing testimony about the allege d sexual harassment. In addition, the MSPB AJ de termin ed that Petitioner most likely fabricated the sexual harassment allegations as a defense to potential disciplinary action resulting from his conduct towards S1 on December 17, 2013. S econd, the MSPB A J found that Petitioner did not establish his aff irmative defense of retaliation. Specifically, the MSPB AJ found that Petitioner’s removal was warranted regardless of any protected EEO activity because the Agency had established its charges against Petit ioner and mos t of the charges were based on condu ct bef ore he engaged in any protected activity. Petitioner sought review by the full Board. On September 15, 2016, the Board issued a final order denying Petitioner’s petition. Petitioner then filed the instant petition. ARGUMENTS O N PETITION In his petition, Petitione r argues that the Agency retaliated against him when it used his January 31, 2014, email as justification for his removal. Specifically, Petitioner asserts that, because his email reques ting assistan ce in filing an EEO complaint was se nt to a ma nagement o fficial logically connected to the EEO process, it was sufficient to initiate the informal EEO process and therefore was participation. In addition, Petitioner asserts that, because the participation clause does not include a reasonabl eness standard, the s tatements in his email we re protected even if the Agency believed that they were false. Moreover, Petitioner asserts that the Agency’s use of the email to support his removal was direct evidence of r etaliation. Finally, Petitioner as serts that the Agenc y was liable for full relief because hearing testimony show ed that it would not have removed him absent the email. In its opposition, the Agency argues that Petitioner could not demo nstrate that his removal was retaliatory. Among other things, the Ag ency asserts that Petitioner’s email d id not fall within the scope of the participation clause because participation commences when an EEO Counselor is contacted. In addition, the Agency asserts that Pet itioner’s email was a threat to initia te EEO action, rather than the initiation of the EEO process itself. Further, the Agency asserts that there is a critical distinction between what i s sufficient to constitute timely contact for purpos es of 29 C.F.R. § 1614.105(a)(1) and what i s suff icient to constitute participation for purposes of Title VII’s anti -retaliation provision. Moreover, the Agency asserts that extending the definition of participation to cover the email would effectively gi ve P etitioner imm unity for deliberately fabricati ng sexual harassment allegations for the purpose of manufacturing a line of defense against discipline for other misconduct. Finally, the Agency asserts that , assuming the email would constitute participati on under the EEOC Enforcement Guidance on Retaliation a nd Related Iss ues, 4 use of the Retaliation Guidance was inappropriate because it was not issued until after the events occurred in this case. 4 EEOC Not ice No. 915.004 (Aug. 25, 2016) (Retaliation Guidance ). STANDARD OF REVIEW EEOC regulations provide that the Comm ission has jurisdiction over mixed case appeals on whic h the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correc t interpretatio n of any applicable law, rule, regulation, or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS Participation – P etitioner’s J anuary 31, 2014, Email As an initial matter , the Commission finds it appropriate to use the Retaliation Guidance as it communicates the Commission’s current position on what constitutes participation . The Commission notes that the Retaliation Guidanc e specifically state s, “OBSOLETE DATA: This docum ent supersedes the EEOC Compliance M anual Section 8: Retaliation (1998) .” Accordingly, this decision will analyze Petitioner ’s retaliation claim under the Commission’s Retal iation Guidance. Regardi ng the partic ipation clause , the Commission states: The anti -retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigatio n, proceeding, or hearing under Title VII . .. This l anguage [is] known as the “par ticipation clause” . .. The particip ation clause applies even if the underlying allegation is not meritorious ... The Commission has long taken the position that the participa tion clause broadly prote cts EEO parti cipation regar dless of whether an individual has a reasonable, g ood faith belie f that the underlying allegations are, or could become, unlawful conduct ... This does not mean that bad faith actions taken in the course of participation are without consequence. False or bad faith statements by either the employee or the employer shoul d be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegation when weighing credibility, ruling on procedural matters, deciding on the scope of the factfinding process, and deci ding if the claim ha s merit. It is the Commission’s position, however, that an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the cour se of particip ation. Retal iation Guidance, at II.A.1 (em phasis added). The Commission furt her states: Although courts often limit the participation clause to administrative charges or lawsuits filed to enforce rights under an EE O statute, and instead c haracterize EEO complaints made internally ( e.g., to a co mpany manager or huma n resources department) as “opposition,” the Supreme Court in Crawford v. Metropolitan Government of Nashville & Davidson C ty. explicitly left open the question of whether inte rnal EEO compla ints might be considered “participation” as well. The Commission ... ha[s] lo ng taken the view that participation and opposition have some overlap, in that raising complaints ... or otherwise participating in an empl oyer’s internal comp laint or investigat ion process , whether before or after an EEOC ... charge has been filed, is covered under the broad protections of the participation clause, although it is also covered as “ opposition.” The plain terms of the particip ation clause prohi bit reta liation again st those who “participated in any manner in an investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 2000e -3(a) (emphasis added). As courts have observed, these statutory terms are broad, unqualified , and not expressl y limite d to investigations conducted by the EEOC. Similarly, co ntacting a federal agency employer ’s internal EEO Counselor under 29 C.F.R. § 1614.105 to allege discrimination is participation. Id. (emphasis added). Regarding the fed eral sector EEO co mplaint process, the Commission ’s guidance states that it begins when a person who believes he has been aggrieved meets with an EEO Counselor. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), Ch. 2, at I.A (Aug. 5, 2015). T he Commission has consistently held that a person may sat isfy the criterion of EEO Counselor contact b y initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. Id. at n.2. In addit ion, the Commission has held t hat in the case of sexual harassment, contact with a supervisory official, who was not an EEO Counselor, was sufficient to constitute EEO Couns elor contact. See Buckli v. Dep’t of t he Army , EEOC Request No. 05970223 (Oct. 8, 1998). Upon review of the r ecord , the Commission finds that Petitioner’s January 31, 2014, email was protected EEO participation. First, the Commission finds that the email was sufficient to co nstitute EEO Counselor contac t because: (a) Petitioner in itiated contact wit h an employee relations official (ERS ) and a supervi sory official (S2) about the alleged sexual harassment; and (b) Petitioner exhibited an intent to begin the EEO process by expli citly request ing assistance i n filing an EEO complaint (“Howe ver, now I conclude that it is necessary to take for mal action. Th erefore [,] I am requesting the assistance of the Employee & Labor Relations Branch in filing an EEO complaint and/or a sexual ha rassment comp laint against [S 1].”). Although the Agency asserts that Petitioner did not have the requisite inten t to begin the EEO process, the Commission disagrees . Petitioner plainly indicated in his email his intent to file an EEO complaint, Petitione r requested assistance in his email from ERS to do so, Petitioner received the con tact information for the EEO Office from ERS, and Pe titioner contac ted the EEO Office approximately two weeks later. Second, the Commission finds that, because the email was sufficient t o constitute EEO Counselor contact, the email was pr otected EEO participation. Al though the Agency asserts that there is a critical d istinction betw een what is sufficient to constitute EEO Counselor contact for purposes of 29 C.F.R. § 1614.105(a)(1) and w hat is sufficient to constitute EEO Counselor conta ct for purposes of Title VII’s participation clause, the Commission disagrees . The Commission emphasizes that neither EEO M D-110 nor the Retaliation Guidance makes such a distinction. Although the Agency asserts that including the email as participation w ould give Petitioner immu nity for deliberately fabricati ng sexual harassment allegations, the Commission notes that the C ommission’s pos ition on this is sue is clear. In the Retaliation Guida nce, the Comm ission states that: (i) the participation clause bro adly protects EEO participation regardless of whether the actions wer e taken in good or bad faith; (ii) bad faith actions taken in the c ourse of partici pation can have consequences within the EEO process; and (iii) an employer can be liable for retaliation if it takes upon itself to impose con sequences for actions taken in the course of participation. Therefore, even if the allegation s in Petitioner ’s email were made in bad faith, the email w ould still be broadly protected by the participation clause. Disparate Treatment – Direct Evidence A petitioner may prove disparate treatment through direct evidence. See Revised Enforcement Guidance on Recen t Developments in Disparate Treatment Theory , § III (Jan. 16, 2009). D irect evidence of discriminatory motive may be any written or verbal policy or statement made by an agency official th at on its face demonstrates a bias against a protect ed group and is linked to the complained- of adverse action. See id. Upon review of the record, the Commission finds that Petitioner proved disparate treatment through direct evidence . Here, Petitioner engaged in protected activity under Title VII when he sent the January 31, 2014, email to ERS and S2 alleging sexual haras sment and requesting assistance in filing an EEO complaint. Shortly thereafter, on February 20, 2014, S2 issued Petitioner a notice of proposed removal , which was sustained by S3. The notice of proposed removal charged Petitioner with, among other things , making false allegations and cited the sexual harassment allegations in his email. Given the Agency’s use, in part, of Petitioner’s EEO activi ty as justification for his removal, the Commission finds that th e facts of this case demonstrate a bias agains t Petitioner based on his protected activity, along with evidence linking that bias to the adverse action. See, e.g., Rigoberto A. v. Env’t Prot. Agency, EEOC Appeal No. 0120180363 (Sept. 17, 2019) (finding direct evidence of discrimination w here record s howed that agency accused complainant of making false allegations and cit ed to those statements as a basis for proposing his removal) . “Mixed Motive” Analysis In light of our finding that Pe titioner’s removal wa s motivated by retaliation, the Commission further find s that this matter should be reviewed under a mixed- motive analysis , because the Agency also provided a non- retaliatory reason for removing Petitioner, i.e., his inappropriate behavior towards his su pervisor (charge 1), his failure to follow supe rvisory instruc tions (charge 2), and his inappropriate behavior in the workplace (charge 3) . Cases such as this, where there is evidence that discrimination was one of multiple motivating factors for a n emp loyment action, that is, the empl oyer acted on the bases of both lawful and unlawful reasons, are known as “mixed motive ” cases. Once an employee demonstrates that discrimination was a motivating factor in the employer’s a ction, the burden shifts to the employer to prove, by clear and convincing evid ence, that it w ould have taken the same action even if it had not conside red the discriminatory factor. See Price Waterhouse v. Hopkins , 490 U.S. 228, 249, 258 (1989); Tellez v . Dep’t of the Army, EEOC R eques t No. 05A41133 (Mar. 18, 2005). I f the employe r is able to me et this burden, the employee is not entitled to personal r elief, i.e., damages, reinstatement, hiring, promotion, and/or back pay. But the employee nonetheless may be ent itled to declaratory relief , injunctive relief, attorneys ’ fees , and costs. Se e Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). To meet its burden, the employer must offer objective evidence that it would have taken the same action ev en absent the discriminat ion. In this showing, the employer must pr oduce proof of a legitimate reason for the action that actually motivated it at th e time of the decision. A mere assertion of a legitimate motive, without additional evidence proving that this motive was a factor in the decision and that it would have independently produced the same result, is not sufficient. The employer must prove “ that with the illegitimate factor removed from the calculus, sufficient business reasons would have induce d it to take the same action.” Price Waterhouse, 490 U.S . at 276- 77 (O’Connor , J., concurring). Upon review of the record, the Comm ission finds that the Agency did not establish that it would have removed Petitioner absent the retaliatio n. Specifically, the followi ng testimony f rom S2 reflects that the Agen cy would not have taken the same a ction, removal, absent Petitioner’s January 31, 2014, emai l: Q. Okay. Now, this is an email to [ERS]. You say that this changed things. What specifically changed as a result of this e mail? A. At that point, I complete ly lost trust in all of the statements that [Petitioner] was making. I didn’t see – couldn’t see how he can continue to work in the organization ... Q. So is it fair to say at that point in time you mad e a decision as to what the penalty would be, or what action you would take wit h regard to [Petitioner]? A: I wouldn’t say it was exactly the same day. But at that point, yes, within the next few days it became absolutely clear to me that I would be proposing removal fr om the fede ral service. * * * Q. Would you agree that before January 31st a nd before [Petitioner ’s] January 31 email, at that point you were considering issuing him a letter of counseling or a suspension? A. I was consider -- I didn’t decide on what pe nalty. But it definitely was not a proposal to -- I was not co nsidering removal at that particular time. Q. And it was th e January 31st email that sort of pushed you over the edge on that? A. I would say so, yes. Hearing Transcript Day 1 , at 203- 04, 235- 36. In addition, S3 testif ied that he p robably would not have sustained a removal action based only on Petitioner’ s alleged conduct on December 17, 2013 (charges 1 - 3). Hearing Transcript Day 2, at 244- 45. In view of the foregoing, the Comm ission finds that the Agenc y did not s atisfy its bu rden of proof to avoid provi ding personal r elief. CONCLUSION The Commission finds that Petitioner’s removal was motivated by retaliation for engaging in protected EEO activity and that the Agency has not demonstrated that it would have removed him from e mployment in the absence of the impermiss ible motivating factor. Accordingly, the Commission finds that Petitioner is entitled to full, make -whole relief. Therefore, based on a thorough review of t he record, it is the decision of the Commiss ion to DIFFER with the final decision of the MSPB finding no discri mination with r egard to Petitioner’s claim of retaliation. The MSPB’s decision erred in its interpretation of the laws, rules, regulations, and policies governing this matter. Petitioner’ s retaliation claim will be returned to the MSPB for further proces sing. PETITION ER’S RIGHT TO FILE A CIVIL ACTION (V0610) Your case is being referred back to the Merit Systems Protection Board for further consideration and the issuance of a new deci sion. You wi ll hav e the right to file a civil action in the appropriat e United States District Court, based on the new decision of the Board: 1. Within thirty (30) calendar days of the date that you receive not ice of the decision of the Board to concur i n this decisi on of the Commission; or, 2. If the Board decides to reaf firm its origin al decision, within thirty (30) calendar days of the date you receive notice of the final decision of the Special Panel to which your case will then be referred. You may also file a civil action if you have not received a final decision fro m either the Me rit Systems Protection Board or the Special Panel within one hundred and eighty (180) days of the date you filed this Petition for Review with the Commission. If you fil e a civil act ion, you must name as the defendant in the complaint the p erson 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 yo ur case in court. “A gency” or “department” means the national organization, an d not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but c annot pay the fees, costs, or securi ty to do so, you may reques t permission from the court to proceed with the civi l action withou t paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may reques t the court to appoint an attorney f or you. You must subm it the requests for waiver of court costs or appointment o f an attorney d irectly 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 f or filin g a civil act ion (please read the paragraph titled Petitioner ’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. H adden, Director Office of Feder al Operations July 5, 2023 Date	[ "Buckli v. Dep’t of t he Army , EEOC Request No. 05970223 (Oct. 8, 1998)", "Rigoberto A. v. Env’t Prot. Agency, EEOC Appeal No. 0120180363 (Sept. 17, 2019)", "Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999)", "490 U.S. 228", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.303", "29 C.F...	[ -0.11409570276737213, 0.08725152164697647, 0.0037209021393209696, -0.0395149402320385, 0.027843456715345383, 0.08990435302257538, 0.08591953665018082, 0.031228015199303627, 0.023930896073579788, 0.016573214903473854, 0.011770791374146938, -0.00303008034825325, 0.019125139340758324, -0.0441...
84	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120072148.txt	0120072148.txt	TXT	text/plain	19,146	Shaukat H. Syed, Complainant, v. Michael O. Johanns, Secretary, Department of Agriculture, Agency.	February 21, 2007	Appeal Number: 0120072148 Complaint Allegations: in his complaint that he was subjected to discrimination based on his religion (Muslim), national origin (not born in the United States), and reprisal1 for prior protected EEO activity when he was verbally abused, ignored and denigrated. He also alleged that the EEO counselor was abusive and did not properly process and handle his EEO claim. In letters notifying complainant of right and responsibilities, and of his right to file a complaint, the EEO counselor characterized the EEO claim raised with her as complainant's second-level supervisor since November 2004 cursing, yelling at, and disrespectfully and unprofessionally treating complainant. Thereafter, the agency provided complainant with the counselor's report. It reiterated the above, with an end date of March 7, 2006. It explained the claim with alleged incident examples of the second-level supervisor repeatedly cursing at complainant and once throwing a piece of paper toward him. It indicated that complainant raised the examples directly in EEO counseling and in a misconduct investigation affidavit he gave the counselor. According to the counselor's report, after advising complainant of the 45-day deadline for contacting an EEO counselor and asking why he waited more than that, complainant responded that he was trying to give the second-level supervisor more time to change his behavior. After receiving the counselor's report, complainant briefly emailed the EEO counselor that the counselor's report was false and baseless, and indicated that his claim was based on working conditions and hostile environment. The FAD characterized the complaint in the same way as the EEO counselor. It dismissed the complaint for failure to timely initiate contact with an EEO counselor. It reasoned that the last alleged incident occurred on March 7, 2006, and complainant did not initiate EEO contact until July 20, 2006, beyond the 45 calendar day time limit. In addition, the FAD found that complaint alleged the EEO counselor was abusive and refused to contact a higher authority in an attempt to resolve the EEO complaint. While dismissing this matter, it instructed complainant how to raise his allegations of his dissatisfaction with the processing of his EEO complaint with the agency. Around the time the FAD was issued, complainant obtained counsel and then gave detailed explanations of his disagreement with the counselor's report. By letter mailed to the agency on February 15, 2007, but received the same day the FAD was issued, complainant rebutted the counselor's report. In this and subsequent writings, complainant adamantly claims as follows. He indicates that the incident examples the EEO counselor used to explain his claim were not raised by him in EEO counseling. He accurately observes that all these matters were raised in his misconduct affidavit dated March 31, 2006 [as supplemented on April 14, 2006]. According to complainant, as best he could recall he did not give the EEO counselor a copy of the affidavit. He writes that he gave a copy of the affidavit to the Acting Deputy Director for the Civil Rights Division in connection with a matter unrelated to his EEO complaint, and theorizes that the counselor obtained it from the Acting Deputy Director. Complainant also denies telling the EEO counselor that he waited to give his second-level supervisor an opportunity to improve his behavior before initiating counselor contact. Effective on or about April 30, 2006, complainant was reassigned against his wishes from the supervisory position of Director, New Technology Staff, GS-15, to the non-supervisory position of Special Assistant to the Deputy Assistant Administrator of Office of Policy, Program and Employee Development, GS-15. With this, he was assigned a much smaller office with non-executive furniture. According to complainant, in this job he would go weeks with no work, and his few assignments were at the GS-12/13 levels. Complainant alleged that he was isolated in that he worked with far fewer people and was cut off from the Director's email listserv. According to complainant, the above was the grounds of his claim with the EEO counselor, which he characterizes as current harassment, not the past matters in his misconduct affidavit. He characterized the claim as being from April 30, 2006, and continuing forward. See complainant's April 24, 2007, affidavit, page 2. Specifically, complainant contends that when he contacted the EEO office by telephone on July 20, 2006, he said that in his current position he was not given any real work, was left out of office activities, and was in virtually in no communication with anyone. Complaint contends that when he was interviewed by the EEO counselor over the telephone on July 24, 2006, he said that he was not used to the extent of his professional experience, was isolated, and was working in a hostile work environment. Complainant observes that his EEO complaint cited the incident date as June 13, 2006, and avers that this was when he had an unsatisfactory discussion with his first and second level supervisors about his current working conditions. In the above correspondence mailed on February 15, 2007, but received on February 21, 2007, the same day the FAD was issued, complainant, in part, both laid out the claims "underlying" his complaint and asked to amend the complaint. Regarding the complaint, complaint raised the reassignment and his treatment in the new job. He also sought to amend his complaint to add the claims of learning in December 2006 or January 29, 2007, that he was denied Federal Executive Institute training and learning on January 29, 2007 that he was denied Strategic Management Training.2 Complainant indicates his complaint was incorrectly defined by the agency to include matters occurring before April 30, 2006, which were all the matters addressed by the FAD. Accordingly, we need not address the FAD's determination on timeliness. Based on complainant's descriptions of his discussions with the EEO office and counselor prior to filing and in connection with his EEO complaint, we find that he did not raise the reassignment to a non-supervisory job claim with the EEO counselor. Instead, based on complainant's descriptions of these discussions, we find that complainant contends he raised treatment in the new job, i.e., assignments and lack thereof, being isolated, and vaguely harassment. Given that the complaint simply makes vague references to verbal abuse, being ignored, and denigrated, and our above finding that complainant did not previously raise the reassignment to a non-supervisory position, we decline to construe the complaint as including the reassignment to a non-supervisory job claim. We also decline to allow it to be added by amendment since it occurred months before complainant initiated contact with an EEO counselor and filed his EEO complaint. The question is whether the complainant's complaint should be construed as containing the claims asserted by complainant: in the new job, complainant was isolated, moved to a small office with non-executive furniture, was given little work, and the few assignments he received were at the GS-12/13 level. None of these claims are included in the counselor's report. Whether the vague complaint should be construed as including these claims depends on whether complainant raised these matters with the EEO office and counselor prior to the filing and in connection with his EEO complaint. On remand, the agency shall secure affidavits from agency EEO officials regarding whether complainant raised these matters. We now turn to complainant's denial of training amendment. It was filed while the complaint was still pending before the agency, i.e., prior to the dismissal FAD of February 21, 2007. Moreover, in light of this decision, the complaint will be pending again before Legal Analysis: the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 19848, Washington, D.C. 20036. 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. Final Decision: Accordingly, we need not address the FAD's determination on timeliness. Based on complainant's descriptions of his discussions with the EEO office and counselor prior to filing and in connection with his EEO complaint, we find that he did not raise the reassignment to a non-supervisory job claim with the EEO counselor. Instead, based on complainant's descriptions of these discussions, we find that complainant contends he raised treatment in the new job, i.e., assignments and lack thereof, being isolated, and vaguely harassment. Given that the complaint simply makes vague references to verbal abuse, being ignored, and denigrated, and our above finding that complainant did not previously raise the reassignment to a non-supervisory position, we decline to construe the complaint as including the reassignment to a non-supervisory job claim. We also decline to allow it to be added by amendment since it occurred months before complainant initiated contact with an EEO counselor and filed his EEO complaint. The question is whether the complainant's complaint should be construed as containing the claims asserted by complainant: in the new job, complainant was isolated, moved to a small office with non-executive furniture, was given little work, and the few assignments he received were at the GS-12/13 level. None of these claims are included in the counselor's report. Whether the vague complaint should be construed as including these claims depends on whether complainant raised these matters with the EEO office and counselor prior to the filing and in connection with his EEO complaint. On remand, the agency shall secure affidavits from agency EEO officials regarding whether complainant raised these matters. We now turn to complainant's denial of training amendment. It was filed while the complaint was still pending before the agency, i.e., prior to the dismissal FAD of February 21, 2007. Moreover, in light of this decision, the complaint will be pending again before the agency. If an incident raises a new claim like or related to the claims raised in the pending complaint, the agency must amend the complaint to include the new claim. U.S. Equal Employment Opportunity Commission EEO Management Directive 110 (EEO-MD-110), Chap. 5, § III.B.2, page 5-11 (November 9, 1999) (available at www.eeoc.gov). EEO-MD-110 cites an example where there is an investigation of a claim of denial of developmental assignments and a complainant seeks to amend the complaint by adding a letter of warning allegedly taken in reprisal for the developmental assignment complaint. The example instructs that the letter of warning claim is related to the pending claim because it grew out of an investigation into that claim. Id. at Example 6. There is no requirement that the complainant seek EEO counseling on the amended claim. Id. at B, page 5-9. Accordingly, the agency must process the amended claim regarding the denial of training. Finally, the FAD's dismissal regarding complainant's claim of dissatisfaction with the processing of his complaint is affirmed.	Shaukat H. Syed, Complainant, v. Michael O. Johanns, Secretary, Department of Agriculture, Agency. Appeal No. 0120072148 Agency No. FSIS-2006-02375 DECISION Complainant filed a timely appeal with this Commission from a final agency decision (FAD) decision dated February 21, 2007, dismissing his 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. Complainant alleged in his complaint that he was subjected to discrimination based on his religion (Muslim), national origin (not born in the United States), and reprisal1 for prior protected EEO activity when he was verbally abused, ignored and denigrated. He also alleged that the EEO counselor was abusive and did not properly process and handle his EEO claim. In letters notifying complainant of right and responsibilities, and of his right to file a complaint, the EEO counselor characterized the EEO claim raised with her as complainant's second-level supervisor since November 2004 cursing, yelling at, and disrespectfully and unprofessionally treating complainant. Thereafter, the agency provided complainant with the counselor's report. It reiterated the above, with an end date of March 7, 2006. It explained the claim with alleged incident examples of the second-level supervisor repeatedly cursing at complainant and once throwing a piece of paper toward him. It indicated that complainant raised the examples directly in EEO counseling and in a misconduct investigation affidavit he gave the counselor. According to the counselor's report, after advising complainant of the 45-day deadline for contacting an EEO counselor and asking why he waited more than that, complainant responded that he was trying to give the second-level supervisor more time to change his behavior. After receiving the counselor's report, complainant briefly emailed the EEO counselor that the counselor's report was false and baseless, and indicated that his claim was based on working conditions and hostile environment. The FAD characterized the complaint in the same way as the EEO counselor. It dismissed the complaint for failure to timely initiate contact with an EEO counselor. It reasoned that the last alleged incident occurred on March 7, 2006, and complainant did not initiate EEO contact until July 20, 2006, beyond the 45 calendar day time limit. In addition, the FAD found that complaint alleged the EEO counselor was abusive and refused to contact a higher authority in an attempt to resolve the EEO complaint. While dismissing this matter, it instructed complainant how to raise his allegations of his dissatisfaction with the processing of his EEO complaint with the agency. Around the time the FAD was issued, complainant obtained counsel and then gave detailed explanations of his disagreement with the counselor's report. By letter mailed to the agency on February 15, 2007, but received the same day the FAD was issued, complainant rebutted the counselor's report. In this and subsequent writings, complainant adamantly claims as follows. He indicates that the incident examples the EEO counselor used to explain his claim were not raised by him in EEO counseling. He accurately observes that all these matters were raised in his misconduct affidavit dated March 31, 2006 [as supplemented on April 14, 2006]. According to complainant, as best he could recall he did not give the EEO counselor a copy of the affidavit. He writes that he gave a copy of the affidavit to the Acting Deputy Director for the Civil Rights Division in connection with a matter unrelated to his EEO complaint, and theorizes that the counselor obtained it from the Acting Deputy Director. Complainant also denies telling the EEO counselor that he waited to give his second-level supervisor an opportunity to improve his behavior before initiating counselor contact. Effective on or about April 30, 2006, complainant was reassigned against his wishes from the supervisory position of Director, New Technology Staff, GS-15, to the non-supervisory position of Special Assistant to the Deputy Assistant Administrator of Office of Policy, Program and Employee Development, GS-15. With this, he was assigned a much smaller office with non-executive furniture. According to complainant, in this job he would go weeks with no work, and his few assignments were at the GS-12/13 levels. Complainant alleged that he was isolated in that he worked with far fewer people and was cut off from the Director's email listserv. According to complainant, the above was the grounds of his claim with the EEO counselor, which he characterizes as current harassment, not the past matters in his misconduct affidavit. He characterized the claim as being from April 30, 2006, and continuing forward. See complainant's April 24, 2007, affidavit, page 2. Specifically, complainant contends that when he contacted the EEO office by telephone on July 20, 2006, he said that in his current position he was not given any real work, was left out of office activities, and was in virtually in no communication with anyone. Complaint contends that when he was interviewed by the EEO counselor over the telephone on July 24, 2006, he said that he was not used to the extent of his professional experience, was isolated, and was working in a hostile work environment. Complainant observes that his EEO complaint cited the incident date as June 13, 2006, and avers that this was when he had an unsatisfactory discussion with his first and second level supervisors about his current working conditions. In the above correspondence mailed on February 15, 2007, but received on February 21, 2007, the same day the FAD was issued, complainant, in part, both laid out the claims "underlying" his complaint and asked to amend the complaint. Regarding the complaint, complaint raised the reassignment and his treatment in the new job. He also sought to amend his complaint to add the claims of learning in December 2006 or January 29, 2007, that he was denied Federal Executive Institute training and learning on January 29, 2007 that he was denied Strategic Management Training.2 Complainant indicates his complaint was incorrectly defined by the agency to include matters occurring before April 30, 2006, which were all the matters addressed by the FAD. Accordingly, we need not address the FAD's determination on timeliness. Based on complainant's descriptions of his discussions with the EEO office and counselor prior to filing and in connection with his EEO complaint, we find that he did not raise the reassignment to a non-supervisory job claim with the EEO counselor. Instead, based on complainant's descriptions of these discussions, we find that complainant contends he raised treatment in the new job, i.e., assignments and lack thereof, being isolated, and vaguely harassment. Given that the complaint simply makes vague references to verbal abuse, being ignored, and denigrated, and our above finding that complainant did not previously raise the reassignment to a non-supervisory position, we decline to construe the complaint as including the reassignment to a non-supervisory job claim. We also decline to allow it to be added by amendment since it occurred months before complainant initiated contact with an EEO counselor and filed his EEO complaint. The question is whether the complainant's complaint should be construed as containing the claims asserted by complainant: in the new job, complainant was isolated, moved to a small office with non-executive furniture, was given little work, and the few assignments he received were at the GS-12/13 level. None of these claims are included in the counselor's report. Whether the vague complaint should be construed as including these claims depends on whether complainant raised these matters with the EEO office and counselor prior to the filing and in connection with his EEO complaint. On remand, the agency shall secure affidavits from agency EEO officials regarding whether complainant raised these matters. We now turn to complainant's denial of training amendment. It was filed while the complaint was still pending before the agency, i.e., prior to the dismissal FAD of February 21, 2007. Moreover, in light of this decision, the complaint will be pending again before the agency. If an incident raises a new claim like or related to the claims raised in the pending complaint, the agency must amend the complaint to include the new claim. U.S. Equal Employment Opportunity Commission EEO Management Directive 110 (EEO-MD-110), Chap. 5, § III.B.2, page 5-11 (November 9, 1999) (available at www.eeoc.gov). EEO-MD-110 cites an example where there is an investigation of a claim of denial of developmental assignments and a complainant seeks to amend the complaint by adding a letter of warning allegedly taken in reprisal for the developmental assignment complaint. The example instructs that the letter of warning claim is related to the pending claim because it grew out of an investigation into that claim. Id. at Example 6. There is no requirement that the complainant seek EEO counseling on the amended claim. Id. at B, page 5-9. Accordingly, the agency must process the amended claim regarding the denial of training. Finally, the FAD's dismissal regarding complainant's claim of dissatisfaction with the processing of his complaint is affirmed. 29 C.F.R. § 1614.107(a)(8). ORDER The agency is ordered to take the following actions: I. The agency shall supplement the record with affidavits by officials in the EEO office with whom complainant communicated before filing his complaint in connection to thereto (this must include the EEO staff person complainant identified as having talked to on July 20, 2006, and the EEO counselor). The affidavits shall address whether complainant raised the following claims: in his new job from April 30, 2006, onward, he was isolated, moved to a small office with non-executive furniture, was given little work, and the few assignments he received were at the GS-12/13 level.3 The affidavits shall also address complainant's contentions regarding what he did and did not raise, e.g., whether he raised the matters in his misconduct affidavit and provided the affidavit to the EEO counselor,4 any reason he gave for the timing of his initial contact with the EEO office, and whether complainant raised matters that were currently occurring as his claims: isolation, not being given real work, not being used to the extent of his professional experience, and harassment. II. Based on complainant's statements and those of the EEO officials, the agency shall then determine the claims the complaint include, and then process the complaint under 29 C.F.R. Part 1614. III. The agency shall then issue a letter accepting or dismissing the claims. IV. The agency shall acknowledge receipt of and process complainant's amended claim that he was discriminated against based on his religion (Muslim), national origin (not born in the United States), and reprisal for EEO activity when he learned in December 2006 or January 29, 2007, that he was denied Federal Executive Institute training and learned on January 29, 2007, that he was denied Strategic Management Training. In so doing, the agency shall take into account the instructions on page 4 of this decision on the processing of complaint amendments. V. The agency must complete the action in item III above and the acknowledgment letter in item IV above within 60 calendar days after this decision becomes final. A copy of the agency's letter accepting or dismissing claims and acknowledging receipt of the amended claims must be sent to the Compliance Officer as referenced below. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (T0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 August 30, 2007 __________________ Date 1 Complainant did not raise the bases of national origin and reprisal in his EEO complaint, but his subsequent writings show he is also alleging discrimination on those bases. 2 On appeal, in both argument and in an affidavit, complainant writes the amendment also included the reassignment. He writes that he initially believed the reassignment would be included in prior EEO claim FSIS-2006-02000, but learned in July 2006 this was not the case. A close reading of the February 2007, correspondence, however, reveals that complainant did not characterize the reassignment matter therein as an amendment, but rather, something already in the complaint. 3 This does not include the claim 4 Regardless of the determination on this matter, however, the claims in the misconduct affidavit are not part of the complaint because complainant states it does not include these matters. ?? ?? ?? ?? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.04294786602258682, 0.13953053951263428, -0.029486319050192833, 0.025007234886288643, -0.02392105758190155, 0.07000795751810074, 0.049062952399253845, -0.016514677554368973, -0.03646295517683029, -0.04089636728167534, 0.07201070338487625, -0.07497131824493408, 0.016910282894968987, 0.010...
85	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113654.txt	0120113654.txt	TXT	text/plain	16,536	Josephine Nyarko, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.	July 5, 2011	Appeal Number: 0120113654 Background: Complainant was employed as a Child and Youth Program Assistant at the Child Development Center (CDC), Marine Corps Community Services (MCCS), in Quantico, Virginia. In December 2008, Complainant injured her back while attempting to lift a child. Thereafter, Complainant had lifting restrictions and was assigned to work light duty, which involved working two hours a day while the children napped. In 2009, Complainant went through the Agency's reasonable accommodation process and was reassigned to work as a Sales Associate at the Marine Mart, a convenience store on the Marine Corps Base Quantico on February 3, 2009. Thereafter, Complainant reinjured her back and received further medical restrictions. Complainant was then reassigned to work at the Main Exchange in March 2010. In November 2010, Complainant was reassigned to a permanent position in the men's department as a Sales Associate at the Marine Corps Exchange. On March 7, 2011, Complainant was terminated, for failure to work. Complainant filed a formal complaint dated May 31, 2011, alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (back injury), and in reprisal for prior protected EEO activity when: 1. On November 2, 2009, the MCCS CDC personnel reduced Complainant's work hours from eight hours per day, to two hours per day. 2. On February 3, 2010, Complainant was reassigned to a sales associate position at the Marine Mart 7 Day Store, which did not meet the needs of her reasonable accommodation, and as a result, she reinjured herself. 3. On March 10, 2010, Complainant applied for a permanent GS-4 position with full time benefits, but she was not selected. 4. On September 30, 2010, (per management it was March 31, 2010), Complainant was reduced in grade from a GSE-4, to an NF-1; after 30 days from the date of the assignment, her pay was reduced from $14.59 per hour to $8.25 per hour. 5. On November 21, 2010, Complainant's work hours were reduced to 19 hours per week, which continued through the date of her termination. 6. On February 14, 2011, Complainant alleged that MCCS CDC personnel determined that sufficient medical documentation was not received to grant her reasonable accommodation, and per management, she refused to work. 7. On March 7, 2011, Complainant was terminated from employment with MCCS. 8. On December 9, 2008, through February 14, 2011, Complainant was harassed by Person 1, Person 2, and Person 3 when they constantly requested that she produce multiple copies of medical documentation, even after copies were provided. 9. Complainant was verbally assaulted by Person 3 when she repeatedly threatened that if Complainant did not perform her tasks (despite having provided medical documentation limiting her abilities), that she would be terminated. Complainant alleged that this statement was vocalized continuously and in front of her peers. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that the latest alleged incident of discrimination occurred on March 7, 2011; however, Complainant did not contact the EEO Office until April 28, 2011. The Agency also noted that the record contains certification showing Complainant attended EEO training where she would have been informed of the 45-day timeframe for making EEO Counselor contact. On appeal, Complainant, through her current non-attorney representative, states that she contacted Person A, an EEO Counselor, on February 11, 2011, upon her receipt of the Proposed Notice of Termination. She claims Person A did not advise her of her EEO rights. Additionally, Complainant states she contacted Person A on March 14, 2011, regarding her Notice of Termination. She states that Person A again failed to inform her of her EEO rights. Complainant argues that her February 11, 2011 and March 14, 2011 contact with Person A satisfied the pre-complaint processing standards for informal EEO Counselor contact. In response to Complainant's appeal, the Agency notes that on February 18, 2010, Complainant contacted the EEO Office and spoke with Person A. The Agency notes that Complainant and her attorney representative at the time requested to engage in the Alternative Dispute Resolution process (ADR). The Agency stresses that Complainant did not mention the EEO process nor did she express any desire to initiate a complaint. The Agency explains that mediation was scheduled but at the last minute, it was canceled by Complainant and her attorney. The Agency states that on February 15, 2011, after receiving a Notice of Proposed Termination, Complainant sent a memorandum to Person A from the EEO office, requesting that the agency participate in ADR. The Agency noted that the memorandum did not mention either discrimination or Complainant's desire to file an EEO complaint. The Agency notes it declined to participate in mediation at that time. The Agency notes that on March 4, 2011, Complainant's attorney sent an electronic mail message to Person A expressing his dissatisfaction with the Agency's denial of mediation. The Agency notes the electronic mail message states, "This pattern of harassment might also be the basis for an EEO complaint, for which I will be advising my client." Again, the Agency notes that Complainant's attorney expressed no desire to file a complaint, but merely said he would speak to his client about it. The Agency states there was no further contact with Person A until Complainant and her new representative met with Person A on April 28, 2011. The Agency notes that Complainant's representative asked that Person A send her the forms necessary to file an EEO complaint via electronic mail. The Agency notes Person A sent the forms and they were returned to her on May 2, 2011. The Agency notes it has EEO posters on its premises which state that an employee must initiate a complaint within 45 days of occurrence. Furthermore, the Agency notes that Complainant attended EEO training on October 14, 2009. The Agency states that this training stressed the requirement of contacting an EEO Counselor within 45 days of the discriminatory incident. Legal Analysis: the Commission AFFIRMS the Agency's final decision. BACKGROUND Complainant was employed as a Child and Youth Program Assistant at the Child Development Center (CDC), Marine Corps Community Services (MCCS), in Quantico, Virginia. In December 2008, Complainant injured her back while attempting to lift a child. Thereafter, Complainant had lifting restrictions and was assigned to work light duty, which involved working two hours a day while the children napped. In 2009, Complainant went through the Agency's reasonable accommodation process and was reassigned to work as a Sales Associate at the Marine Mart, a convenience store on the Marine Corps Base Quantico on February 3, 2009. Thereafter, Complainant reinjured her back and received further medical restrictions. Complainant was then reassigned to work at the Main Exchange in March 2010. In November 2010, Complainant was reassigned to a permanent position in the men's department as a Sales Associate at the Marine Corps Exchange. On March 7, 2011, Complainant was terminated, for failure to work. Complainant filed a formal complaint dated May 31, 2011, alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (back injury), and in reprisal for prior protected EEO activity when: 1. On November 2, 2009, the MCCS CDC personnel reduced Complainant's work hours from eight hours per day, to two hours per day. 2. On February 3, 2010, Complainant was reassigned to a sales associate position at the Marine Mart 7 Day Store, which did not meet the needs of her reasonable accommodation, and as a result, she reinjured herself. 3. On March 10, 2010, Complainant applied for a permanent GS-4 position with full time benefits, but she was not selected. 4. On September 30, 2010, (per management it was March 31, 2010), Complainant was reduced in grade from a GSE-4, to an NF-1; after 30 days from the date of the assignment, her pay was reduced from $14.59 per hour to $8.25 per hour. 5. On November 21, 2010, Complainant's work hours were reduced to 19 hours per week, which continued through the date of her termination. 6. On February 14, 2011, Complainant alleged that MCCS CDC personnel determined that sufficient medical documentation was not received to grant her reasonable accommodation, and per management, she refused to work. 7. On March 7, 2011, Complainant was terminated from employment with MCCS. 8. On December 9, 2008, through February 14, 2011, Complainant was harassed by Person 1, Person 2, and Person 3 when they constantly requested that she produce multiple copies of medical documentation, even after copies were provided. 9. Complainant was verbally assaulted by Person 3 when she repeatedly threatened that if Complainant did not perform her tasks (despite having provided medical documentation limiting her abilities), that she would be terminated. Complainant alleged that this statement was vocalized continuously and in front of her peers. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that the latest alleged incident of discrimination occurred on March 7, 2011; however, Complainant did not contact the EEO Office until April 28, 2011. The Agency also noted that the record contains certification showing Complainant attended EEO training where she would have been informed of the 45-day timeframe for making EEO Counselor contact. On appeal, Complainant, through her current non-attorney representative, states that she contacted Person A, an EEO Counselor, on February 11, 2011, upon her receipt of the Proposed Notice of Termination. She claims Person A did not advise her of her EEO rights. Additionally, Complainant states she contacted Person A on March 14, 2011, regarding her Notice of Termination. She states that Person A again failed to inform her of her EEO rights. Complainant argues that her February 11, 2011 and March 14, 2011 contact with Person A satisfied the pre-complaint processing standards for informal EEO Counselor contact. In response to Complainant's appeal, the Agency notes that on February 18, 2010, Complainant contacted the EEO Office and spoke with Person A. The Agency notes that Complainant and her attorney representative at the time requested to engage in the Alternative Dispute Resolution process (ADR). The Agency stresses that Complainant did not mention the EEO process nor did she express any desire to initiate a complaint. The Agency explains that mediation was scheduled but at the last minute, it was canceled by Complainant and her attorney. The Agency states that on February 15, 2011, after receiving a Notice of Proposed Termination, Complainant sent a memorandum to Person A from the EEO office, requesting that the agency participate in ADR. The Agency noted that the memorandum did not mention either discrimination or Complainant's desire to file an EEO complaint. The Agency notes it declined to participate in mediation at that time. The Agency notes that on March 4, 2011, Complainant's attorney sent an electronic mail message to Person A expressing his dissatisfaction with the Agency's denial of mediation. The Agency notes the electronic mail message states, "This pattern of harassment might also be the basis for an EEO complaint, for which I will be advising my client." Again, the Agency notes that Complainant's attorney expressed no desire to file a complaint, but merely said he would speak to his client about it. The Agency states there was no further contact with Person A until Complainant and her new representative met with Person A on April 28, 2011. The Agency notes that Complainant's representative asked that Person A send her the forms necessary to file an EEO complaint via electronic mail. The Agency notes Person A sent the forms and they were returned to her on May 2, 2011. The Agency notes it has EEO posters on its premises which state that an employee must initiate a complaint within 45 days of occurrence. Furthermore, the Agency notes that Complainant attended EEO training on October 14, 2009. The Agency states that this training stressed the requirement of contacting an EEO Counselor within 45 days of the discriminatory incident. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides 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. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond (his or her) control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission. In the present case, the alleged discriminatory incidents occurred between December 9, 2008, and March 7, 2011, the date Complainant was terminated. Complainant states, without dispute from the Agency, that she received the notice of termination on March 12, 2011. We find Complainant suspected or reasonably should have suspected discrimination at the latest, by the time she received the termination letter. Moreover, we note Complainant does not dispute the Agency's contention that she attended EEO training on October 14, 2009. Additionally, the Agency provides a Student Summary Inquiry confirming that Complainant attended and completed EEO training on October 14, 2009. The Agency supplies copies of the slides used during this training which included information on the 45-day time frame for initiating EEO Counselor contact. Thus, we find Complainant had constructive knowledge of the applicable limitations period. The record reveals that in February 2010, Complainant contacted Person A, who served as both an EEO Counselor and the ADR Program Manager. In a letter from Complainant's attorney submitted in February 2010, the attorney alleged that the Agency was not accommodating Complainant under the Longshore and Harbor Worker's Compensation Act (LHWCA). The attorney noted that Complainant demands the Agency reconsider its placement of Complainant under the terms of the employment contract ADR procedure. The attorney also stated he was notifying the Agency of Complainant's "intent to file a grievance under the provisions of the Collective Bargaining agreement, for harassment and arbitrary reduction in hourly wage." Finally, the attorney noted that Complainant was notifying the Agency that "she will file a claim for Retaliatory Termination, pursuant to the LHWCA, if Employer dismisses her." The record reveals that both parties agreed to mediate the dispute; however, according to a March 12, 2010 electronic mail message the mediation was subsequently postponed. Thereafter, on February 15, 2011, Complainant sent an electronic mail message to Person A requesting ADR to resolve her denial of reasonable accommodation of her medical limitations for her work related injury. In a February 28, 2011 electronic mail message, Person A informed Complainant that the Agency declined to participate in mediation. In a March 4, 2011, electronic mail message to Person A, Complainant's attorney stated that Complainant "has certain rights under the bargaining agreement and that is the basis for her ADR request." The attorney noted that the Agency should stop harassing Complainant with respect to her requests for accommodation. The attorney noted that "this pattern of harassment might also be the basis for an EEOC complaint, for which I will be advising my client." The attorney also stated that any subsequent termination of Complainant will result in his filing a "retaliatory dismissal" claim pursuant to the Longshore Act. The record reveals there was no further contact between Complainant and the EEO Office until April 28, 2011, when Complainant asked Person A to send her, via electronic mail, the forms necessary to file an EEO complaint. As to Complainant's contentions regarding her February and March 2011 contact with Person A, the Commission notes that it is well-settled that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intends to pursue EEO counseling when he initiates EEO contact. See Snyder v. Dep't of Def., EEOC Request No. 05901061 (November 1, 1990); Menard v. Dep't of the Navy, EEOC Appeal No. 01990626 (January 5, 2001), request for reconsideration denied, EEOC Request No. 05A10279 (May 9, 2001). In the present case, the record reveals that Complainant began communicating with Person A, an EEO Counselor, as early as February 2010, and then again in February and March 2011. However, the record reveals that Complainant was contacting Person A to pursue ADR on her workplace concerns. Specifically, we note that in a March 4, 2011 electronic mail message, Complainant's attorney noted that the Agency's actions "might be the basis for an EEOC complaint, for which [he] will be advising [his] client" which we find confirms that Complainant had not yet initiated EEO Counselor contact. We find the record contains no evidence that Complainant exhibited any intent to pursue the EEO process prior to April 28, 2011, which was beyond the applicable limitations period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Final Decision: Accordingly, the Agency's final decision is AFFIRMED.	Josephine Nyarko, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120113654 Agency No. MC 11-00264-02561 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated July 5, 2011, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. BACKGROUND Complainant was employed as a Child and Youth Program Assistant at the Child Development Center (CDC), Marine Corps Community Services (MCCS), in Quantico, Virginia. In December 2008, Complainant injured her back while attempting to lift a child. Thereafter, Complainant had lifting restrictions and was assigned to work light duty, which involved working two hours a day while the children napped. In 2009, Complainant went through the Agency's reasonable accommodation process and was reassigned to work as a Sales Associate at the Marine Mart, a convenience store on the Marine Corps Base Quantico on February 3, 2009. Thereafter, Complainant reinjured her back and received further medical restrictions. Complainant was then reassigned to work at the Main Exchange in March 2010. In November 2010, Complainant was reassigned to a permanent position in the men's department as a Sales Associate at the Marine Corps Exchange. On March 7, 2011, Complainant was terminated, for failure to work. Complainant filed a formal complaint dated May 31, 2011, alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (back injury), and in reprisal for prior protected EEO activity when: 1. On November 2, 2009, the MCCS CDC personnel reduced Complainant's work hours from eight hours per day, to two hours per day. 2. On February 3, 2010, Complainant was reassigned to a sales associate position at the Marine Mart 7 Day Store, which did not meet the needs of her reasonable accommodation, and as a result, she reinjured herself. 3. On March 10, 2010, Complainant applied for a permanent GS-4 position with full time benefits, but she was not selected. 4. On September 30, 2010, (per management it was March 31, 2010), Complainant was reduced in grade from a GSE-4, to an NF-1; after 30 days from the date of the assignment, her pay was reduced from $14.59 per hour to $8.25 per hour. 5. On November 21, 2010, Complainant's work hours were reduced to 19 hours per week, which continued through the date of her termination. 6. On February 14, 2011, Complainant alleged that MCCS CDC personnel determined that sufficient medical documentation was not received to grant her reasonable accommodation, and per management, she refused to work. 7. On March 7, 2011, Complainant was terminated from employment with MCCS. 8. On December 9, 2008, through February 14, 2011, Complainant was harassed by Person 1, Person 2, and Person 3 when they constantly requested that she produce multiple copies of medical documentation, even after copies were provided. 9. Complainant was verbally assaulted by Person 3 when she repeatedly threatened that if Complainant did not perform her tasks (despite having provided medical documentation limiting her abilities), that she would be terminated. Complainant alleged that this statement was vocalized continuously and in front of her peers. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that the latest alleged incident of discrimination occurred on March 7, 2011; however, Complainant did not contact the EEO Office until April 28, 2011. The Agency also noted that the record contains certification showing Complainant attended EEO training where she would have been informed of the 45-day timeframe for making EEO Counselor contact. On appeal, Complainant, through her current non-attorney representative, states that she contacted Person A, an EEO Counselor, on February 11, 2011, upon her receipt of the Proposed Notice of Termination. She claims Person A did not advise her of her EEO rights. Additionally, Complainant states she contacted Person A on March 14, 2011, regarding her Notice of Termination. She states that Person A again failed to inform her of her EEO rights. Complainant argues that her February 11, 2011 and March 14, 2011 contact with Person A satisfied the pre-complaint processing standards for informal EEO Counselor contact. In response to Complainant's appeal, the Agency notes that on February 18, 2010, Complainant contacted the EEO Office and spoke with Person A. The Agency notes that Complainant and her attorney representative at the time requested to engage in the Alternative Dispute Resolution process (ADR). The Agency stresses that Complainant did not mention the EEO process nor did she express any desire to initiate a complaint. The Agency explains that mediation was scheduled but at the last minute, it was canceled by Complainant and her attorney. The Agency states that on February 15, 2011, after receiving a Notice of Proposed Termination, Complainant sent a memorandum to Person A from the EEO office, requesting that the agency participate in ADR. The Agency noted that the memorandum did not mention either discrimination or Complainant's desire to file an EEO complaint. The Agency notes it declined to participate in mediation at that time. The Agency notes that on March 4, 2011, Complainant's attorney sent an electronic mail message to Person A expressing his dissatisfaction with the Agency's denial of mediation. The Agency notes the electronic mail message states, "This pattern of harassment might also be the basis for an EEO complaint, for which I will be advising my client." Again, the Agency notes that Complainant's attorney expressed no desire to file a complaint, but merely said he would speak to his client about it. The Agency states there was no further contact with Person A until Complainant and her new representative met with Person A on April 28, 2011. The Agency notes that Complainant's representative asked that Person A send her the forms necessary to file an EEO complaint via electronic mail. The Agency notes Person A sent the forms and they were returned to her on May 2, 2011. The Agency notes it has EEO posters on its premises which state that an employee must initiate a complaint within 45 days of occurrence. Furthermore, the Agency notes that Complainant attended EEO training on October 14, 2009. The Agency states that this training stressed the requirement of contacting an EEO Counselor within 45 days of the discriminatory incident. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides 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. EOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond (his or her) control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission. In the present case, the alleged discriminatory incidents occurred between December 9, 2008, and March 7, 2011, the date Complainant was terminated. Complainant states, without dispute from the Agency, that she received the notice of termination on March 12, 2011. We find Complainant suspected or reasonably should have suspected discrimination at the latest, by the time she received the termination letter. Moreover, we note Complainant does not dispute the Agency's contention that she attended EEO training on October 14, 2009. Additionally, the Agency provides a Student Summary Inquiry confirming that Complainant attended and completed EEO training on October 14, 2009. The Agency supplies copies of the slides used during this training which included information on the 45-day time frame for initiating EEO Counselor contact. Thus, we find Complainant had constructive knowledge of the applicable limitations period. The record reveals that in February 2010, Complainant contacted Person A, who served as both an EEO Counselor and the ADR Program Manager. In a letter from Complainant's attorney submitted in February 2010, the attorney alleged that the Agency was not accommodating Complainant under the Longshore and Harbor Worker's Compensation Act (LHWCA). The attorney noted that Complainant demands the Agency reconsider its placement of Complainant under the terms of the employment contract ADR procedure. The attorney also stated he was notifying the Agency of Complainant's "intent to file a grievance under the provisions of the Collective Bargaining agreement, for harassment and arbitrary reduction in hourly wage." Finally, the attorney noted that Complainant was notifying the Agency that "she will file a claim for Retaliatory Termination, pursuant to the LHWCA, if Employer dismisses her." The record reveals that both parties agreed to mediate the dispute; however, according to a March 12, 2010 electronic mail message the mediation was subsequently postponed. Thereafter, on February 15, 2011, Complainant sent an electronic mail message to Person A requesting ADR to resolve her denial of reasonable accommodation of her medical limitations for her work related injury. In a February 28, 2011 electronic mail message, Person A informed Complainant that the Agency declined to participate in mediation. In a March 4, 2011, electronic mail message to Person A, Complainant's attorney stated that Complainant "has certain rights under the bargaining agreement and that is the basis for her ADR request." The attorney noted that the Agency should stop harassing Complainant with respect to her requests for accommodation. The attorney noted that "this pattern of harassment might also be the basis for an EEOC complaint, for which I will be advising my client." The attorney also stated that any subsequent termination of Complainant will result in his filing a "retaliatory dismissal" claim pursuant to the Longshore Act. The record reveals there was no further contact between Complainant and the EEO Office until April 28, 2011, when Complainant asked Person A to send her, via electronic mail, the forms necessary to file an EEO complaint. As to Complainant's contentions regarding her February and March 2011 contact with Person A, the Commission notes that it is well-settled that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intends to pursue EEO counseling when he initiates EEO contact. See Snyder v. Dep't of Def., EEOC Request No. 05901061 (November 1, 1990); Menard v. Dep't of the Navy, EEOC Appeal No. 01990626 (January 5, 2001), request for reconsideration denied, EEOC Request No. 05A10279 (May 9, 2001). In the present case, the record reveals that Complainant began communicating with Person A, an EEO Counselor, as early as February 2010, and then again in February and March 2011. However, the record reveals that Complainant was contacting Person A to pursue ADR on her workplace concerns. Specifically, we note that in a March 4, 2011 electronic mail message, Complainant's attorney noted that the Agency's actions "might be the basis for an EEOC complaint, for which [he] will be advising [his] client" which we find confirms that Complainant had not yet initiated EEO Counselor contact. We find the record contains no evidence that Complainant exhibited any intent to pursue the EEO process prior to April 28, 2011, which was beyond the applicable limitations period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision is AFFIRMED. 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 (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 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 December 5, 2012 __________________ Date 01-2011-3654	[ "Allen v. U.S. Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Snyder v. Dep't of Def., EEOC Request No. 05901061 (November 1, 1990)", "Menard v. Dep't of the Navy, EEOC Appeal No. 01990626 (January 5, 2001)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F...	[ -0.11104129254817963, 0.04145243763923645, -0.004641389008611441, 0.09500531852245331, -0.003894903464242816, 0.08430081605911255, -0.016988951712846756, 0.017409706488251686, -0.07540402561426163, 0.06235317885875702, 0.07334841042757034, 0.004176658112555742, -0.016055844724178314, 0.062...
86	https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2023000661.pdf	2023000661.pdf	PDF	application/pdf	13,755	Norbert K .,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.	October 12, 2022	Appeal Number: 2023000661 Background: During the period at issue, Complainant w as an applicant for two positions with the Agency's Dallas Regional Office in Dallas, Texas. On February 10, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race, religion, and disability when, on January 15, 2021: 1. Complainant was notified that he was not hired for a Resolutions and Receiverships Specialist (Claims Administration), CG -1101- 09 position, advertised under Vacancy Announcement No. 2020- DAL -B0104; and 2. Complainant was notified t hat he was not hired for a Resolutions and Receiverships Specialist (Customer Service) , CG -1101- 09 position, advertised under Vacancy Announcement No. 2020- DAL -B0049. After its investigation of the claims , the Agency provided Complainant wit h a copy of the report of investigation and notice of the right to request a hearing before an EEO C Administrative Judge (AJ). Complainant requested a hearing. On April 29, 2022, the Agency filed a motion with the AJ to dismiss the formal complaint for untimely EEO Counselor contact . Complainant filed an opposition to the motion. On September 9, 2022, the AJ dismissed the entire formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ determined that the record reflected that Complainant became aware of his non -selection s as early as September 21, 2020, or as late as the end of October 2020, 2 but did not initiate EEO c ounselor contact until January 19, 2021, which was well beyond the 45- day regulatory limitation period. The AJ noted that Complainant had discussed his non- selection s with an EEO Specialist on December 11, 2020. H owever, the AJ found that C omplainant did not express the requisite intent to initiate the EEO process at that time. Therefore, the AJ determined that Complainant’s January 19, 2021 EEO counselor contact was untimely and dismissed the formal complaint. On October 12, 2022, the Agency issued a final order implementing the AJ’s dismissal for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that he timely initiated EEO counselor contact. Complainant asserts that he contacted the EEO Specialist on D ecember 11, 2020, and he requested to file a formal complaint on January 19, 2021, which he subsequently filed on February 9, 2021. Complainant argues the December 11, 2020 meeting should be deemed his initial EEO contact . Complainant further reasons that he did not have reasonable suspicion that his non- selection was discriminatory until January 19, 2021, which was when he “was able to observe the differences betw een people who were selected fo r the positions and [himself].” 2 The AJ determined that documentation in the record suggested that Complainant had enable d automatic notifications on his USAJobs.gov account, the online program where he applied for the positions, which would have notified him on September 21, 2020, of his non- selection regarding the position vacancy identified in claim 1. The AJ acknowledged that Complainant indicated in his formal complaint that he did not became aware of his non- selection for t he vacancy identified in claim 2 until January 15, 2021. However, the AJ noted that Complainant testified in a sworn affidavit th at he was notified of his non- selection for both vacancies at the end of October 2020. Th e AJ determined that Complainant initiated EEO Counselor contact on January 19, 2021, which the AJ found to be outside of the 45- day limitation period. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for untimely EEO c ounselor cont act. 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimina tion should be brought to the attention of the Equal Employment Opportunity Counselor w ithin 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 reasona bly suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The record reflects that the AJ properly granted t he Agency’s Motion to Dismiss the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant testified in his sworn affidavit tha t he became aware of both of his non- selections in October 2020. Even if we pr esume that Complainant was not notified until October 31, 2020, Complainant had 45- days, or until December 15, 2020, to timely initiate EEO Counselor contact, but did not do so until January 19, 2021. It is well settled that a complainant satisfies the c riterion of EEO c ounselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, w e ackno wledge that Complainant met with an EEO Specialist, an official logically connected with the EEO process, on December 11, 2020. However, we do not find that Complainant exhibited the requisite intent to pursue an EEO complaint at that meeting. The record includes a December 23, 2020 email from the EEO Specialist to Complainant summarizing their meeting on December 11, 2020. The email states the following: On December 11, 2020, we met and discussed information related to the informal EEO complaint process . During the meeting, you shared with me your concern regarding not being hired for a Customer Service Representative and Claims position you applied for with the FDIC. You also mentioned that your disability and religion may have been a f actor in the deci sion and that [management official] was involved in the selection process. At the	Norbert K .,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2023000661 Hearing No. 450-2021-00354X Agency No. FDICEO-21-010 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated October 12, 2022, implementing the dismissal of a formal complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e e t 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 w as an applicant for two positions with the Agency's Dallas Regional Office in Dallas, Texas. On February 10, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race, religion, and disability when, on January 15, 2021: 1. Complainant was notified that he was not hired for a Resolutions and Receiverships Specialist (Claims Administration), CG -1101- 09 position, advertised under Vacancy Announcement No. 2020- DAL -B0104; and 2. Complainant was notified t hat he was not hired for a Resolutions and Receiverships Specialist (Customer Service) , CG -1101- 09 position, advertised under Vacancy Announcement No. 2020- DAL -B0049. After its investigation of the claims , the Agency provided Complainant wit h a copy of the report of investigation and notice of the right to request a hearing before an EEO C Administrative Judge (AJ). Complainant requested a hearing. On April 29, 2022, the Agency filed a motion with the AJ to dismiss the formal complaint for untimely EEO Counselor contact . Complainant filed an opposition to the motion. On September 9, 2022, the AJ dismissed the entire formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ determined that the record reflected that Complainant became aware of his non -selection s as early as September 21, 2020, or as late as the end of October 2020, 2 but did not initiate EEO c ounselor contact until January 19, 2021, which was well beyond the 45- day regulatory limitation period. The AJ noted that Complainant had discussed his non- selection s with an EEO Specialist on December 11, 2020. H owever, the AJ found that C omplainant did not express the requisite intent to initiate the EEO process at that time. Therefore, the AJ determined that Complainant’s January 19, 2021 EEO counselor contact was untimely and dismissed the formal complaint. On October 12, 2022, the Agency issued a final order implementing the AJ’s dismissal for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant argues that he timely initiated EEO counselor contact. Complainant asserts that he contacted the EEO Specialist on D ecember 11, 2020, and he requested to file a formal complaint on January 19, 2021, which he subsequently filed on February 9, 2021. Complainant argues the December 11, 2020 meeting should be deemed his initial EEO contact . Complainant further reasons that he did not have reasonable suspicion that his non- selection was discriminatory until January 19, 2021, which was when he “was able to observe the differences betw een people who were selected fo r the positions and [himself].” 2 The AJ determined that documentation in the record suggested that Complainant had enable d automatic notifications on his USAJobs.gov account, the online program where he applied for the positions, which would have notified him on September 21, 2020, of his non- selection regarding the position vacancy identified in claim 1. The AJ acknowledged that Complainant indicated in his formal complaint that he did not became aware of his non- selection for t he vacancy identified in claim 2 until January 15, 2021. However, the AJ noted that Complainant testified in a sworn affidavit th at he was notified of his non- selection for both vacancies at the end of October 2020. Th e AJ determined that Complainant initiated EEO Counselor contact on January 19, 2021, which the AJ found to be outside of the 45- day limitation period. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for untimely EEO c ounselor cont act. 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimina tion should be brought to the attention of the Equal Employment Opportunity Counselor w ithin 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 reasona bly suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The record reflects that the AJ properly granted t he Agency’s Motion to Dismiss the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant testified in his sworn affidavit tha t he became aware of both of his non- selections in October 2020. Even if we pr esume that Complainant was not notified until October 31, 2020, Complainant had 45- days, or until December 15, 2020, to timely initiate EEO Counselor contact, but did not do so until January 19, 2021. It is well settled that a complainant satisfies the c riterion of EEO c ounselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, w e ackno wledge that Complainant met with an EEO Specialist, an official logically connected with the EEO process, on December 11, 2020. However, we do not find that Complainant exhibited the requisite intent to pursue an EEO complaint at that meeting. The record includes a December 23, 2020 email from the EEO Specialist to Complainant summarizing their meeting on December 11, 2020. The email states the following: On December 11, 2020, we met and discussed information related to the informal EEO complaint process . During the meeting, you shared with me your concern regarding not being hired for a Customer Service Representative and Claims position you applied for with the FDIC. You also mentioned that your disability and religion may have been a f actor in the deci sion and that [management official] was involved in the selection process. At the conclusion of our meeting, you stated that you did not want to file an informal complaint at this time. Since you do not want to file a complaint, your inte raction with me w ill be deemed as a “contact only.” Please sign the attached Notice of 45 Days to Request EEO Counseling form and return it to me via email. Should you change your mind or have questions about the process contact me. In this email, the EEO Specialist clearly stated that Complainant had no intent to pursue the EEO process at that time, even though Complainant had been aware of his non- selections as early as October 31, 2020, and even though during the December 11, 2020, Complainant indic ated that he had s uspected that his non- selections were discriminatory . The record indicates that it was not until January 19, 2021, that Complainant emailed the EEO Specialist and stated, “I would like to file an informal EEO complaint.” Therefore, Complainant did not ex press an intent to pursue the EEO process until January 19, 2021, which was more than 45- days after Complainant learned, on approximately October 31, 2020, that he was not selected for both positions. Notably, if Complainant had pursued t he EEO process and initiated EEO c ounselor contact during the December 11, 2022 meeting, he would have done so within 45- days after he was informed of his non- selection on October 31, 2020. Complainant has not provided adequate justification for extending the 45 -day limitation period. Therefore, we find that the AJ properly granted the Agency’s motion to dismiss the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. CONCLUSION The Agency’s final order implementin g the AJ’s dismissal of the formal complaint on the grounds of untimely EEO c ounselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellat e decision if Complainant or the Agenc y submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decisi on will have a substantial impact on t he policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of another par ty’s request for reconsideration within whic h 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). Complainant should submit his or her request for reconsi deration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Compla inant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE , Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as u ntimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsidera tion 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 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 procee d 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 o r 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 Compl ainant’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 March 22, 2023 Date	[ "Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb . 11, 1999)", "Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.109(b)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403...	[ -0.026082037016749382, 0.09125035256147385, -0.02152043581008911, 0.04474165290594101, 0.010965479537844658, 0.04600522667169571, 0.030058255419135094, -0.041223302483558655, 0.009925507940351963, -0.016014426946640015, 0.03222225233912468, 0.014355714432895184, 0.005608783569186926, -0.03...
87	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151139.txt	0120151139.txt	TXT	text/plain	14,966	Spencer T.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.	July 21, 2014	Appeal Number: 0120151139 Background: At the time of events giving rise to this complaint, Complainant worked as a Peer Support Specialist at the Agency's Medical Center in Battle Creek, Michigan. The record indicated that Complainant received a letter dated March 18, 2013, from the Medical Center Director informing him that pages from the Family Medical Leave Act records were shared with three Administrative Investigation Board members. On June 6, 2013, Complainant sent an email to the Case manager EEO Specialist (EEO Specialist) informing her of the release of his medical documentation to other Agency officials. The EEO Specialist solely instructed Complainant to call the Agency's toll free EEO number. Complainant also raised the letter with the Investigator assigned his prior EEO complaint. On May 22, 2014, Complainant contacted the EEO Counselor alleging discrimination when the medical documents were released. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a formal complaint. On June 24, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, on March 18, 2013, he was informed that his medical records were shared with the members of an Administrative Board of Investigators. The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2). The Agency noted that Complainant was aware of the alleged discrimination when he received the letter. He emailed the EEO Specialist seeking an amendment to his pending EEO complaint. The EEO Specialist indicated to Complainant that he needed to call the Agency's EEO Counselor number regarding this new claim of discrimination. The Agency found that Complainant waited until May 22, 2014, to initiate informal counseling on this new matter, well beyond the 45 day time limit. Without explanation for an extension, the Agency found that the matter should be dismissed pursuant to 29 C.F.R. §1614.107(a)(2) for untimeliness. This appeal followed. On appeal, Complainant indicated that his appeal is based on the March 2013 letter he received stating that his medical information was shared with Agency officials. Complainant asked that the matter be addressed. The Agency requested that the Commission affirm its dismissal. Legal Analysis: the Commission affirm its dismissal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record indicated that Complainant had received the March 2013 letter. Complainant contacted the EEO Specialist via e-mail asking to amend his pending EEO complaint to include the new issue based on the release of his medical information to Agency officials. The only response that the EEO Specialist provided was that Complainant needed to contact the Agency's toll free EEO line. The EEO Specialist failed to give any reason or explanation. The record also contains transcripts from the investigation into Complainant's prior EEO matter which was dated October 7, 2013. During the interrogatory, Complainant raised the issue of the March 2013 letter and noted that he provided a copy of the letter to be included with the prior EEO complaint's investigation. Further, within the record, there is a copy of an e-mail between Complainant and the EEO Counselor in the instant matter. In the e-mail, Complainant stated that the EEO Specialist told him that medical disclosure was a mistake and that there was no intent on the part of the Agency to violate the law. Upon review of the record, we find that Complainant was not provided with sufficient guidance on how to proceed with his claim of unlawful medical disclosure in violation of the Rehabilitation Act. When Complainant received a copy of the letter informing him of the medical disclosure, he contacted the EEO Specialist seeking an amendment to his existing EEO complaint, namely Agency No. 1200J-0515-2013100601. At any time prior to the Agency's mailing of the notice required by 29 C.F.R. § 1614.108(f) at the	Spencer T.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120151139 Agency No. 200J-0515-2014103136 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated July 21, 2014, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Peer Support Specialist at the Agency's Medical Center in Battle Creek, Michigan. The record indicated that Complainant received a letter dated March 18, 2013, from the Medical Center Director informing him that pages from the Family Medical Leave Act records were shared with three Administrative Investigation Board members. On June 6, 2013, Complainant sent an email to the Case manager EEO Specialist (EEO Specialist) informing her of the release of his medical documentation to other Agency officials. The EEO Specialist solely instructed Complainant to call the Agency's toll free EEO number. Complainant also raised the letter with the Investigator assigned his prior EEO complaint. On May 22, 2014, Complainant contacted the EEO Counselor alleging discrimination when the medical documents were released. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a formal complaint. On June 24, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, on March 18, 2013, he was informed that his medical records were shared with the members of an Administrative Board of Investigators. The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2). The Agency noted that Complainant was aware of the alleged discrimination when he received the letter. He emailed the EEO Specialist seeking an amendment to his pending EEO complaint. The EEO Specialist indicated to Complainant that he needed to call the Agency's EEO Counselor number regarding this new claim of discrimination. The Agency found that Complainant waited until May 22, 2014, to initiate informal counseling on this new matter, well beyond the 45 day time limit. Without explanation for an extension, the Agency found that the matter should be dismissed pursuant to 29 C.F.R. §1614.107(a)(2) for untimeliness. This appeal followed. On appeal, Complainant indicated that his appeal is based on the March 2013 letter he received stating that his medical information was shared with Agency officials. Complainant asked that the matter be addressed. The Agency requested that the Commission affirm its dismissal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record indicated that Complainant had received the March 2013 letter. Complainant contacted the EEO Specialist via e-mail asking to amend his pending EEO complaint to include the new issue based on the release of his medical information to Agency officials. The only response that the EEO Specialist provided was that Complainant needed to contact the Agency's toll free EEO line. The EEO Specialist failed to give any reason or explanation. The record also contains transcripts from the investigation into Complainant's prior EEO matter which was dated October 7, 2013. During the interrogatory, Complainant raised the issue of the March 2013 letter and noted that he provided a copy of the letter to be included with the prior EEO complaint's investigation. Further, within the record, there is a copy of an e-mail between Complainant and the EEO Counselor in the instant matter. In the e-mail, Complainant stated that the EEO Specialist told him that medical disclosure was a mistake and that there was no intent on the part of the Agency to violate the law. Upon review of the record, we find that Complainant was not provided with sufficient guidance on how to proceed with his claim of unlawful medical disclosure in violation of the Rehabilitation Act. When Complainant received a copy of the letter informing him of the medical disclosure, he contacted the EEO Specialist seeking an amendment to his existing EEO complaint, namely Agency No. 1200J-0515-2013100601. At any time prior to the Agency's mailing of the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation, 29 C.F.R. § 1614.106(d) permits Complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5 III.B. (Aug. 5, 2015). The EEO Specialist should have instructed Complainant to submit a letter to the agency's EEO Director or a designee describing the new incident and stating that he wishes to amend his complaint to include the new incident. Id. The EEO Director or designee shall review this request, determine whether the new incident constitutes a new claim or one that is like or related to the pending complaint. The EEO Specialist failed to provide Complainant with such guidance. Furthermore, it appears that the EEO Specialist dissuaded Complainant from pursuing the matter and indicated that it was a mistake and that there was motive or intent to violate the law on the part of the Agency. In addition, Complainant informed the Investigator of this new claim in October 2013. The Investigator similarly should have instructed Complainant to make his amendment request in writing to the EEO Director. The Investigator failed to do so as well. Based on the totality of the circumstances of this case, it appears that the Agency officials failed to provide Complainant with the appropriate steps in order to amend his complaint. Furthermore, it appears based on Complainant's email that the EEO Specialist dissuaded him from pursuing this claim that the Agency violated the Rehabilitation Act when it disclosed medical documentation to Agency officials. The Commission has previously held that the Agency may not dismiss a complaint based on a Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if Agency officials misled Complainant into waiting to initiate EEO counseling, Agency must extend time limit for contacting EEO Counselor). Based on the record before us, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. §1614.107(a)(2) was not appropriate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERES the Agency's final decision and REMAND the 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 (Nov. 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's signature Carlton M. Hadden, Director Office of Federal Operations March 1, 2016 __________________ Date ------------------------------------------------------------ ------------------------------------------------------------ 01-2015-1139	[ "Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996)", "Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996)", "29 C.F.R. § 1614.108(f)", "29 C.F.R. § 1614.106(d)", "29 C.F.R. § 1614.108", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.4...	[ -0.08372113853693008, 0.1117221936583519, 0.031074283644557, -0.021205615252256393, 0.041374873369932175, 0.028890686109662056, 0.03961380943655968, 0.043557461351156235, -0.00013187674630898982, 0.01575084589421749, 0.03440506011247635, 0.015110284090042114, -0.01961815543472767, 0.012344...
88	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985652.r.txt	01985652.r.txt	TXT	text/plain	14,998		July 9, 1998	Appeal Number: 01985652 Complaint Allegations: In her complaint, complainant alleged that she was subjected to discrimination on the bases of physical disability (diabetes, partial blindness, heart disease, and neuropathy) and in reprisal for prior EEO activity when since October 1995 through July 1, 1997, the Chief of Health Information Services (CHIS) subjected her to ongoing harassment with regard to the following incidents: Complainant was called into the CHIS' office on a weekly basis and kept there for up to one and one half hours and told that she had to speak with the CHIS since she was complainant's supervisor; In October 1996, and several times thereafter, the CHIS stated complainant was making up a chest pain to get attention; In November 1996, the CHIS jumped on complainant for leaving the office unattended. The same afternoon of this incident, she gave complainant a verbal counseling; In December 1996, although complainant had moved to another area, the CHIS continued to come to complainant's office three to four times a day for no apparent reason; In February 1997, the CHIS gave complainant's co-worker an award but did not give an award to complainant; On July 1, 1997, the CHIS grabbed complainant's arm and pushed complainant aside. Case Facts: On July 9, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by her on June 15, 1998, pertaining to her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> In her complaint, complainant alleged that she was subjected to discrimination on the bases of physical disability (diabetes, partial blindness, heart disease, and neuropathy) and in reprisal for prior EEO activity when since October 1995 through July 1, 1997, the Chief of Health Information Services (CHIS) subjected her to ongoing harassment with regard to the following incidents: Complainant was called into the CHIS' office on a weekly basis and kept there for up to one and one half hours and told that she had to speak with the CHIS since she was complainant's supervisor; In October 1996, and several times thereafter, the CHIS stated complainant was making up a chest pain to get attention; In November 1996, the CHIS jumped on complainant for leaving the office unattended. The same afternoon of this incident, she gave complainant a verbal counseling; In December 1996, although complainant had moved to another area, the CHIS continued to come to complainant's office three to four times a day for no apparent reason; In February 1997, the CHIS gave complainant's co-worker an award but did not give an award to complainant; On July 1, 1997, the CHIS grabbed complainant's arm and pushed complainant aside. The agency dismissed the complaint pursuant to Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.105(a)(1), for untimely EEO Counselor contact. Specifically, the agency noted that the last incident of discrimination occurred on July 1, 1997, and complainant did not contact an EEO Counselor until September 3, 1997, sixty-four days after the date of the last alleged discriminatory action. In an October 6, 1997 report of contact, the EEO Counselor documented that complainant stated that she was aware of the time limits for filing an EEO complaint. In addition, the agency relied on the sexual harassment training complainant attended on November 14, 1996, and the EEO poster in complainant's working area as evidence that complainant was aware of the time limits for filing an EEO complaint. The agency noted that when asked about her delay in initiating EEO contact, complainant indicated that she filed a grievance on the same issues, but it was taking too long to be resolved. Thus, the agency found that complainant was aware of the time limit for contacting an EEO Counselor and therefore dismissed her complaint for failing to timely initiate contact with an EEO Counselor. On appeal, complainant claims that on July 8, 1997, she met with an individual who was both the EEO Officer and the Medical Center Director to discuss the July 1 incident. Thus, complainant claims that she timely reported the incident to the EEO Officer at the facility and was never told to see an EEO Counselor to initiate the process. Complainant later contacted an EEO Counselor on September 3, 1997. Complainant states that she was not aware of the time frame involved in processing an EEO complaint. Complainant states that the only EEO posting at the facility is located in the basement, which is not near her work area. In addition, complainant contends that the sexual harassment training she attended in November 1996, was inadequate to put her on notice for the EEO discrimination complaint she was filing, since it did not involve a claim of sexual harassment. The record contains evidence of complainant's July 8, 1997 contact with the Medical Center Director (EEO Officer), in the form of an Administrative Board of Investigation report. According to the final report of the Administrative Board of Investigation, the Board was convened on July 11, 1997, in response to complainant's contact with the Medical Center Director. The report states that although incidental issues were raised in the process of interviewing witnesses to the July 1, 1997 incident, the scope of the Administrative Board's investigation was limited to the July 1, 1997 incident which resulted in an allegation of assault by complainant against her supervisor. The report does not mention whether complainant raised an allegation of discrimination at that time. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. With regard to complainant's contention that she initiated contact with an EEO Counselor on July 8, 1997, regarding the July 1, 1997 incident, we note that the Commission has previously held that for purposes of satisfying the criterion of counselor contact, a complainant need only contact an agency official who is logically connected to the EEO process and exhibit an intent to pursue her EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the Medical Center Director (EEO Officer), a person who can be considered logically connected to the EEO process in order to complain of the treatment she had received on July 1st by her supervisor. We note, however, as indicated above, that there is no evidence of record whether complainant raised allegations of discrimination with the Medical Center Director (EEO Officer), i.e., exhibited an intent to pursue her EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision that the complainant failed to initiate timely EEO Counselor contact and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. ORDER The agency is ORDERED to take the following actions: Conduct a supplemental investigation regarding complainant's July 8, 1998 contact with the Medical Center Director (EEO Officer). The agency shall obtain a statement from the Medical Center Director (EEO Officer) regarding the July 8th contact indicating whether complainant raised an allegation of discrimination and/or exhibited an intent to pursue her EEO rights; a statement from complainant regarding her contact with the Medical Center Director (EEO Officer) indicating whether she raised an allegation of discrimination and/or exhibited an intent to pursue her EEO rights; and any other relevant evidence regarding the July 8, 1998 contact between complainant and the Medical Center Director (EEO Officer). Within forty-five (45) calendar days of the date this decision becomes final, the agency shall issue a new final agency decision or notify complainant of the claims to be processed. A copy of the agency's new final decision or notice of the claims to be processed must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).	Susan Dylewski, ) Complainant, ) ) v. ) Appeal No. 01985652 Togo D. West, Jr., ) Agency No. 980309 Secretary, ) Department of Veterans Affairs, ) Agency. ) ____________________________________) DECISION On July 9, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by her on June 15, 1998, pertaining to her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> In her complaint, complainant alleged that she was subjected to discrimination on the bases of physical disability (diabetes, partial blindness, heart disease, and neuropathy) and in reprisal for prior EEO activity when since October 1995 through July 1, 1997, the Chief of Health Information Services (CHIS) subjected her to ongoing harassment with regard to the following incidents: Complainant was called into the CHIS' office on a weekly basis and kept there for up to one and one half hours and told that she had to speak with the CHIS since she was complainant's supervisor; In October 1996, and several times thereafter, the CHIS stated complainant was making up a chest pain to get attention; In November 1996, the CHIS jumped on complainant for leaving the office unattended. The same afternoon of this incident, she gave complainant a verbal counseling; In December 1996, although complainant had moved to another area, the CHIS continued to come to complainant's office three to four times a day for no apparent reason; In February 1997, the CHIS gave complainant's co-worker an award but did not give an award to complainant; On July 1, 1997, the CHIS grabbed complainant's arm and pushed complainant aside. The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.105(a)(1), for untimely EEO Counselor contact. Specifically, the agency noted that the last incident of discrimination occurred on July 1, 1997, and complainant did not contact an EEO Counselor until September 3, 1997, sixty-four days after the date of the last alleged discriminatory action. In an October 6, 1997 report of contact, the EEO Counselor documented that complainant stated that she was aware of the time limits for filing an EEO complaint. In addition, the agency relied on the sexual harassment training complainant attended on November 14, 1996, and the EEO poster in complainant's working area as evidence that complainant was aware of the time limits for filing an EEO complaint. The agency noted that when asked about her delay in initiating EEO contact, complainant indicated that she filed a grievance on the same issues, but it was taking too long to be resolved. Thus, the agency found that complainant was aware of the time limit for contacting an EEO Counselor and therefore dismissed her complaint for failing to timely initiate contact with an EEO Counselor. On appeal, complainant claims that on July 8, 1997, she met with an individual who was both the EEO Officer and the Medical Center Director to discuss the July 1 incident. Thus, complainant claims that she timely reported the incident to the EEO Officer at the facility and was never told to see an EEO Counselor to initiate the process. Complainant later contacted an EEO Counselor on September 3, 1997. Complainant states that she was not aware of the time frame involved in processing an EEO complaint. Complainant states that the only EEO posting at the facility is located in the basement, which is not near her work area. In addition, complainant contends that the sexual harassment training she attended in November 1996, was inadequate to put her on notice for the EEO discrimination complaint she was filing, since it did not involve a claim of sexual harassment. The record contains evidence of complainant's July 8, 1997 contact with the Medical Center Director (EEO Officer), in the form of an Administrative Board of Investigation report. According to the final report of the Administrative Board of Investigation, the Board was convened on July 11, 1997, in response to complainant's contact with the Medical Center Director. The report states that although incidental issues were raised in the process of interviewing witnesses to the July 1, 1997 incident, the scope of the Administrative Board's investigation was limited to the July 1, 1997 incident which resulted in an allegation of assault by complainant against her supervisor. The report does not mention whether complainant raised an allegation of discrimination at that time. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. With regard to complainant's contention that she initiated contact with an EEO Counselor on July 8, 1997, regarding the July 1, 1997 incident, we note that the Commission has previously held that for purposes of satisfying the criterion of counselor contact, a complainant need only contact an agency official who is logically connected to the EEO process and exhibit an intent to pursue her EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the Medical Center Director (EEO Officer), a person who can be considered logically connected to the EEO process in order to complain of the treatment she had received on July 1st by her supervisor. We note, however, as indicated above, that there is no evidence of record whether complainant raised allegations of discrimination with the Medical Center Director (EEO Officer), i.e., exhibited an intent to pursue her EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision that the complainant failed to initiate timely EEO Counselor contact and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. ORDER The agency is ORDERED to take the following actions: Conduct a supplemental investigation regarding complainant's July 8, 1998 contact with the Medical Center Director (EEO Officer). The agency shall obtain a statement from the Medical Center Director (EEO Officer) regarding the July 8th contact indicating whether complainant raised an allegation of discrimination and/or exhibited an intent to pursue her EEO rights; a statement from complainant regarding her contact with the Medical Center Director (EEO Officer) indicating whether she raised an allegation of discrimination and/or exhibited an intent to pursue her EEO rights; and any other relevant evidence regarding the July 8, 1998 contact between complainant and the Medical Center Director (EEO Officer). Within forty-five (45) calendar days of the date this decision becomes final, the agency shall issue a new final agency decision or notify complainant of the claims to be processed. A copy of the agency's new final decision or notice of the claims to be processed must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1199) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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 (R1199) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: January 18, 2000 Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _______________ __________________________ Date Equal Employment Assistant 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 1614.405", "29 C.F.R...	[ -0.11224104464054108, 0.03982163593173027, -0.02140643447637558, 0.032740186899900436, 0.01311580091714859, 0.057034123688936234, 0.031102675944566727, 0.05361140891909599, -0.024888787418603897, 0.0838724821805954, -0.01336214691400528, 0.03442966565489769, -0.030090918764472008, 0.001729...
89	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992068_r.txt	01992068_r.txt	TXT	text/plain	13,145		December 15, 1998	Appeal Number: 01992068 Case Facts: On December 15, 1998, appellant filed a timely appeal of a December 7, 1998 final agency decision dismissing his complaint for failure to contact an EEO Counselor in a timely manner. As an initial matter, the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. Legal Analysis: the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find that appellant failed to contact an EEO Counselor in a timely manner. As found in the Commission's prior decision, appellant had a reasonable suspicion of discrimination in 1994. We find that appellant did not initiate EEO Counselor contact regarding allegation (2) until August 13, 1996, as reflected in the November 14, 1996 Final Report of the EEO Counselor. We find further that the earliest appellant referenced allegation (1), the performance ratings allegation, was in November 1994, during EEO counseling initiated on November 21, 1994 in another informal complaint. In a March 5, 1994 letter to his Congressman which appellant submitted to the EEO Counselor (Counselor A) during EEO counseling on the November 21, 1994 informal complaint, appellant discussed his performance ratings.<2> The performance ratings were also mentioned in appellant's November 19, 1995 declaration in a Report of Investigation that resulted from appellant having filed a formal complaint following the completion of EEO counseling on the November 1994 informal complaint. Final Decision: Accordingly, we find that appellant's contact regarding the dismissed allegations was untimely and appellant has not provided justification sufficient to extend the time limit. The Commission is not persuaded that appellant first contacted an EEO Counselor in April 1994, regarding the dismissed allegations. The record contains the November 30, 1998 statement of the 1994 EEO Counselor which was submitted as a result of the Commission's order in the prior decision. The 1994 EEO Counselor stated that on April 7, 1994, appellant contacted him and he advised him of his EEO rights under part 1614. The Counselor further stated that appellant only identified the issue of the grade classification of his position. The Counselor informed appellant that if he disagreed with the classification of his position, he could appeal the matter to the Office of Personnel Management. The EEO Counselor further stated that appellant did not raise the issue of performance ratings and he did not file a precomplaint. The EEO Counselor also denied having misled appellant about his EEO rights. The record also contains an April 7, 1994 Initial Interview Report of the 1994 EEO Counselor. The only issue identified in the Report is appellant's grade classification. Finally, to the extent that appellant may be challenging the EEO process regarding the December 22, 1994 formal complaint filed following the November 1994 counseling, the Commission notes that we have held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding. An allegation can be characterized as a collateral attack where it involves a challenge to another forum's proceedings, such as the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers' compensation process, the tort claims process, and so forth. See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996); Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, consistent with our discussion herein, the agency's final decision is hereby AFFIRMED.	Robert J. Zaytsow, ) Appellant, ) ) Appeal No. 01992068 v. ) Agency No. MUOF96249 ) F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ) DECISION On December 15, 1998, appellant filed a timely appeal of a December 7, 1998 final agency decision dismissing his complaint for failure to contact an EEO Counselor in a timely manner. As an initial matter, the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find that appellant failed to contact an EEO Counselor in a timely manner. As found in the Commission's prior decision, appellant had a reasonable suspicion of discrimination in 1994. We find that appellant did not initiate EEO Counselor contact regarding allegation (2) until August 13, 1996, as reflected in the November 14, 1996 Final Report of the EEO Counselor. We find further that the earliest appellant referenced allegation (1), the performance ratings allegation, was in November 1994, during EEO counseling initiated on November 21, 1994 in another informal complaint. In a March 5, 1994 letter to his Congressman which appellant submitted to the EEO Counselor (Counselor A) during EEO counseling on the November 21, 1994 informal complaint, appellant discussed his performance ratings.<2> The performance ratings were also mentioned in appellant's November 19, 1995 declaration in a Report of Investigation that resulted from appellant having filed a formal complaint following the completion of EEO counseling on the November 1994 informal complaint. Accordingly, we find that appellant's contact regarding the dismissed allegations was untimely and appellant has not provided justification sufficient to extend the time limit. The Commission is not persuaded that appellant first contacted an EEO Counselor in April 1994, regarding the dismissed allegations. The record contains the November 30, 1998 statement of the 1994 EEO Counselor which was submitted as a result of the Commission's order in the prior decision. The 1994 EEO Counselor stated that on April 7, 1994, appellant contacted him and he advised him of his EEO rights under part 1614. The Counselor further stated that appellant only identified the issue of the grade classification of his position. The Counselor informed appellant that if he disagreed with the classification of his position, he could appeal the matter to the Office of Personnel Management. The EEO Counselor further stated that appellant did not raise the issue of performance ratings and he did not file a precomplaint. The EEO Counselor also denied having misled appellant about his EEO rights. The record also contains an April 7, 1994 Initial Interview Report of the 1994 EEO Counselor. The only issue identified in the Report is appellant's grade classification. Finally, to the extent that appellant may be challenging the EEO process regarding the December 22, 1994 formal complaint filed following the November 1994 counseling, the Commission notes that we have held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding. An allegation can be characterized as a collateral attack where it involves a challenge to another forum's proceedings, such as the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers' compensation process, the tort claims process, and so forth. See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996); Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, consistent with our discussion herein, the agency's final decision is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: June 2, 1999 DATE Carlton M. Hadden, Acting Director 1The record reflects that the subject of allegation (1) is appellant's performance appraisals. Appellant, a grade level 9, alleged that his supervisors informed him that under the performance appraisal system, there was only a limited number of evaluative points to distribute among employees. Because other employees had lower grades than appellant, he was allegedly told by his supervisors that they would use the available points to provide higher appraisal ratings for those employees so that those employees could rise to a grade 9. Appellant also alleged that he was also informed by his supervisors that they would leave only enough evaluative points for him to receive appraisals of "fully satisfactory" and that eventually, he and the other employees would reach a grade 11 noncompetitively. Because he received only fully satisfactory appraisals, appellant alleges that he could not be promoted noncompetitively. 2Appellant filed a December 22, 1994 formal complaint in that matter. The agency's final decision therein was appealed to the Commission. The appeal was docketed by the Commission as EEOC Appeal No. 01952153 and decided on September 27, 1995.	[ "Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998)", "Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996)", "Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994)" ]	[ -0.04488169029355049, 0.04184216260910034, -0.06530039757490158, -0.024560587480664253, 0.1194324642419815, -0.008363963104784489, 0.10927621275186539, 0.10505101829767227, -0.029601819813251495, 0.047773897647857666, 0.05124376714229584, 0.00818841252475977, 0.018846681341528893, 0.066558...
90	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992068.txt	01992068.txt	TXT	text/plain	13,252		June 2, 1999	Appeal Number: 01992068 Case Facts: On December 15, 1998, appellant filed a timely appeal of a December 7, 1998 final agency decision dismissing his complaint for failure to contact an EEO Counselor in a timely manner. As an initial matter, the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. Legal Analysis: the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find that appellant failed to contact an EEO Counselor in a timely manner. As found in the Commission's prior decision, appellant had a reasonable suspicion of discrimination in 1994. We find that appellant did not initiate EEO Counselor contact regarding allegation (2) until August 13, 1996, as reflected in the November 14, 1996 Final Report of the EEO Counselor. We find further that the earliest appellant referenced allegation (1), the performance ratings allegation, was in November 1994, during EEO counseling initiated on November 21, 1994 in another informal complaint. In a March 5, 1994 letter to his Congressman which appellant submitted to the EEO Counselor (Counselor A) during EEO counseling on the November 21, 1994 informal complaint, appellant discussed his performance ratings.<2> The performance ratings were also mentioned in appellant's November 19, 1995 declaration in a Report of Investigation that resulted from appellant having filed a formal complaint following the completion of EEO counseling on the November 1994 informal complaint. Final Decision: Accordingly, we find that appellant's contact regarding the dismissed allegations was untimely and appellant has not provided justification sufficient to extend the time limit. The Commission is not persuaded that appellant first contacted an EEO Counselor in April 1994, regarding the dismissed allegations. The record contains the November 30, 1998 statement of the 1994 EEO Counselor which was submitted as a result of the Commission's order in the prior decision. The 1994 EEO Counselor stated that on April 7, 1994, appellant contacted him and he advised him of his EEO rights under part 1614. The Counselor further stated that appellant only identified the issue of the grade classification of his position. The Counselor informed appellant that if he disagreed with the classification of his position, he could appeal the matter to the Office of Personnel Management. The EEO Counselor further stated that appellant did not raise the issue of performance ratings and he did not file a precomplaint. The EEO Counselor also denied having misled appellant about his EEO rights. The record also contains an April 7, 1994 Initial Interview Report of the 1994 EEO Counselor. The only issue identified in the Report is appellant's grade classification. Finally, to the extent that appellant may be challenging the EEO process regarding the December 22, 1994 formal complaint filed following the November 1994 counseling, the Commission notes that we have held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding. An allegation can be characterized as a collateral attack where it involves a challenge to another forum's proceedings, such as the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers' compensation process, the tort claims process, and so forth. See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996); Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, consistent with our discussion herein, the agency's final decision is hereby AFFIRMED.	Robert J. Zaytsow v. Department of the Air Force 01992068 June 2, 1999 Robert J. Zaytsow, ) Appellant, ) ) Appeal No. 01992068 v. ) Agency No. MUOF96249 ) F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ) DECISION On December 15, 1998, appellant filed a timely appeal of a December 7, 1998 final agency decision dismissing his complaint for failure to contact an EEO Counselor in a timely manner. As an initial matter, the Commission notes that the present complaint was the subject of a prior final agency decision (FAD-1). In FAD-1, the agency identified the dismissed allegations of the May 11, 1996 complaint as whether appellant was discriminated against on the bases of age (over 40) and in reprisal when the following occurred: (1) from September 1989 until July 1994, appellant was denied a competitive promotion by being consistently and unfairly given lower annual performance ratings than what he deserved;<1> and (2) the agency retaliated against him for communicating with his Congressman about his age discrimination allegations in March 1994, when he was denied a noncompetitive promotion in 1994. In dismissing the allegations for untimely EEO contact, the agency stated that because appellant did not contact an EEO Counselor until August 13, 1996, the contact was beyond the 45-day time limitation and appellant did not offer justification sufficient to extend the time period. Appellant appealed FAD-1 to the Commission. Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998). In his appeal of FAD-1, appellant argued that he contacted an EEO Counselor in April 1994 and was misled by the Counselor. Appellant asserted that the EEO Counselor informed him that he could attempt to resolve the matter with his supervisor or challenge his failure to receive a noncompetitive promotion with the Office of Personnel Management and that if those actions failed, he could return to the EEO process. The Commission found in the prior decision that appellant should have had a reasonable suspicion of discrimination in 1994. However, the Commission vacated and remanded FAD-1 because the agency failed to address appellant's argument that he had contacted an EEO Counselor regarding the dismissed allegations in April 1994. On remand, the agency was specifically ordered to supplement the record with an affidavit from the 1994 EEO Counselor addressing whether appellant had raised the dismissed allegations and addressing whether appellant was informed that he could attempt to resolve the matter outside of the EEO process and then return to the EEO process later. The agency was also ordered to obtain all relevant notes from the 1994 EEO Counselor addressing appellant's 1994 EEO Counselor contact. The agency was further ordered to issue a new agency decision or process the complaint after its investigation was completed. The agency issued a new final decision (FAD-2) which is the subject of the present appeal. In FAD-2, the agency again dismissed the complaint for untimely EEO contact on the grounds that he did not initiate EEO contact until August 13, 1996. EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she 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 counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppel and equitable tolling. Upon review, we find that appellant failed to contact an EEO Counselor in a timely manner. As found in the Commission's prior decision, appellant had a reasonable suspicion of discrimination in 1994. We find that appellant did not initiate EEO Counselor contact regarding allegation (2) until August 13, 1996, as reflected in the November 14, 1996 Final Report of the EEO Counselor. We find further that the earliest appellant referenced allegation (1), the performance ratings allegation, was in November 1994, during EEO counseling initiated on November 21, 1994 in another informal complaint. In a March 5, 1994 letter to his Congressman which appellant submitted to the EEO Counselor (Counselor A) during EEO counseling on the November 21, 1994 informal complaint, appellant discussed his performance ratings.<2> The performance ratings were also mentioned in appellant's November 19, 1995 declaration in a Report of Investigation that resulted from appellant having filed a formal complaint following the completion of EEO counseling on the November 1994 informal complaint. Accordingly, we find that appellant's contact regarding the dismissed allegations was untimely and appellant has not provided justification sufficient to extend the time limit. The Commission is not persuaded that appellant first contacted an EEO Counselor in April 1994, regarding the dismissed allegations. The record contains the November 30, 1998 statement of the 1994 EEO Counselor which was submitted as a result of the Commission's order in the prior decision. The 1994 EEO Counselor stated that on April 7, 1994, appellant contacted him and he advised him of his EEO rights under part 1614. The Counselor further stated that appellant only identified the issue of the grade classification of his position. The Counselor informed appellant that if he disagreed with the classification of his position, he could appeal the matter to the Office of Personnel Management. The EEO Counselor further stated that appellant did not raise the issue of performance ratings and he did not file a precomplaint. The EEO Counselor also denied having misled appellant about his EEO rights. The record also contains an April 7, 1994 Initial Interview Report of the 1994 EEO Counselor. The only issue identified in the Report is appellant's grade classification. Finally, to the extent that appellant may be challenging the EEO process regarding the December 22, 1994 formal complaint filed following the November 1994 counseling, the Commission notes that we have held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding. An allegation can be characterized as a collateral attack where it involves a challenge to another forum's proceedings, such as the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers' compensation process, the tort claims process, and so forth. See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996); Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, consistent with our discussion herein, the agency's final decision is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092) 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 that the Court appoint an attorney to represent you and that the Court 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 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: June 2, 1999 DATE Carlton M. Hadden, Acting Director 1The record reflects that the subject of allegation (1) is appellant's performance appraisals. Appellant, a grade level 9, alleged that his supervisors informed him that under the performance appraisal system, there was only a limited number of evaluative points to distribute among employees. Because other employees had lower grades than appellant, he was allegedly told by his supervisors that they would use the available points to provide higher appraisal ratings for those employees so that those employees could rise to a grade 9. Appellant also alleged that he was also informed by his supervisors that they would leave only enough evaluative points for him to receive appraisals of "fully satisfactory" and that eventually, he and the other employees would reach a grade 11 noncompetitively. Because he received only fully satisfactory appraisals, appellant alleges that he could not be promoted noncompetitively. 2Appellant filed a December 22, 1994 formal complaint in that matter. The agency's final decision therein was appealed to the Commission. The appeal was docketed by the Commission as EEOC Appeal No. 01952153 and decided on September 27, 1995.	[ "Zaytsow v. Department of the Air Force, EEOC Appeal No. 01971958 (November 24, 1998)", "Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18, 1996)", "Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994)" ]	[ -0.058947887271642685, 0.03563832864165306, -0.05169723182916641, -0.014643237926065922, 0.12782391905784607, -0.013426034711301327, 0.07397278398275375, 0.11341244727373123, -0.018982378765940666, 0.06254878640174866, 0.041194599121809006, 0.02569170668721199, -0.0018275472102686763, 0.06...
91	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102154.txt	0120102154.txt	TXT	text/plain	11,491	Jairo N. Vargas, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.	April 1, 2010	Appeal Number: 0120102154 Case Facts: Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2010, dismissing his 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. Legal Analysis: Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. ISSUE PRESENTED Whether the EEOC Administrative Judge (AJ) was correct in dismissing Complainant's complaint for untimely EEO counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Boarder Patrol Agent Intern, GS-7, at the Agency's Wellton Station in Yuma, Arizona. On May 28, 2008, Complainant was terminated from his position. On June 10, 2008, Complainant contacted EEO Counselor RF reporting that he had been terminated. After Complainant's counselor contact, neither the counselor nor Complainant took any action to begin the process of filing an EEO complaint. Also, on June 10, 2008, Counselor RF noted in the Contact Summary Sheet that he informed Complainant of the 45-day requirement and notified him that he would not be taking any action unless Complainant notified him of his intent to file an EEO Complaint. Complainant did not contact Counselor RF again until March 9, 2009. At that time, Complainant indicated to Counselor RF that he wised to file an EEO complaint. On June 2, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Mexican-American), and disability when: on May 28, 2008, management terminated his employment during his probationary period. Following an investigation by the Agency, Complainant requested a hearing before an AJ. Following a motion to dismiss by the Agency, the AJ dismissed Complainant's complaint on the grounds of untimely EEO counselor contact. Specifically, the AJ found that Complainant had not demonstrated that he intended to pursue an EEO complaint in June 2008. In this regard, the AJ noted that Complainant stated that he contacted an EEO counselor on June 10, 2008, but did not follow up with the counselor until May 9, 2009. The AJ also found that Complainant was aware that the EEO counselor was not going to take action during this time period. CONTENTIONS ON APPEAL On appeal, Complainant contends that he contacted the Counselor RF on or before June 10, 2008, with an intent to pursue EEO counseling. In this regard, Complainant contends that he told counselor RF that he was wanted to file an EEO complaint and the counselor responded that Complainant did not have an EEO violation and told him that "he could not do anything about it." Further, Complainant contends that Counselor RF was supposed to send him a package that he never received. Complainant further contends that he did not follow up with Counselor RF because of depression and the medications he was prescribed inhibited him from doing so. ANAYLSIS 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 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. Whether the AJ's dismissal in this case was appropriate hinges on whether or not Complainant's June 10, 2008 contact with Counselor RF was made with the intent to pursue the EEO complaint process. Although Complainant contacted the Agency's EEO office to express his concern about his termination on June 10, 2008, we find that this contact did not constitute an initial EEO Counselor contact for the purposes of 29 C.F.R. §1614. The Commission has held that, in order to establish EEO Counselor contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996). Here, we concur with the AJ that Complainant's contact with the EEO office in June 10, 2008, was insufficient to constitute EEO Counselor contact and initiation of the EEO process because there is no indication that Complainant exhibited the requisite intent to pursue the process. The record shows that on the June 10, 2008 Contact Summary Sheet, Counselor RF indicated: [Complainant] acknowledged that he did not believe discrimination played a role in his termination other that what was mentioned above. He said that he would review the EEOC website for further information on the EEO Protected Classes. I notified him of the 45-day requirement and notified him that at this point I would be taking no further action unless he notified me otherwise of his intent to file an EEO Complaint. A letter was sent June 10, 2008, to his home address to memorialize our conversation. Investigative File, Tab G-5, pp. 372-373. We note that, on appeal, Complainant contends that he contacted Counselor RF on June 10, 2008, with the intention of filing an EEO complaint, but that Counselor RF indicated that he could not help. However, it is undisputed that counselor RF did not take any action and that Complainant did not follow up with counselor RF until March 9, 2009, which was 8 months after his initial contact. We find that Complainant's delay in following up with Counselor RF indicates that he did not intend to begin the EEO process until that time. Consequently, as Complainant's March 9, 2009, EEO counselor contact occurred more than 45 days after his May 28, 2008 termination, it was untimely.1 Final Decision: Accordingly, the Agency's final decision adopting the AJ's decision dismissing Complainant's complaint is AFFIRMED.	Jairo N. Vargas, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency. Appeal No. 0120102154 Hearing No. 540201000016X Agency No. HS09CBP004285 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2010, dismissing his 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. ISSUE PRESENTED Whether the EEOC Administrative Judge (AJ) was correct in dismissing Complainant's complaint for untimely EEO counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Boarder Patrol Agent Intern, GS-7, at the Agency's Wellton Station in Yuma, Arizona. On May 28, 2008, Complainant was terminated from his position. On June 10, 2008, Complainant contacted EEO Counselor RF reporting that he had been terminated. After Complainant's counselor contact, neither the counselor nor Complainant took any action to begin the process of filing an EEO complaint. Also, on June 10, 2008, Counselor RF noted in the Contact Summary Sheet that he informed Complainant of the 45-day requirement and notified him that he would not be taking any action unless Complainant notified him of his intent to file an EEO Complaint. Complainant did not contact Counselor RF again until March 9, 2009. At that time, Complainant indicated to Counselor RF that he wised to file an EEO complaint. On June 2, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Mexican-American), and disability when: on May 28, 2008, management terminated his employment during his probationary period. Following an investigation by the Agency, Complainant requested a hearing before an AJ. Following a motion to dismiss by the Agency, the AJ dismissed Complainant's complaint on the grounds of untimely EEO counselor contact. Specifically, the AJ found that Complainant had not demonstrated that he intended to pursue an EEO complaint in June 2008. In this regard, the AJ noted that Complainant stated that he contacted an EEO counselor on June 10, 2008, but did not follow up with the counselor until May 9, 2009. The AJ also found that Complainant was aware that the EEO counselor was not going to take action during this time period. CONTENTIONS ON APPEAL On appeal, Complainant contends that he contacted the Counselor RF on or before June 10, 2008, with an intent to pursue EEO counseling. In this regard, Complainant contends that he told counselor RF that he was wanted to file an EEO complaint and the counselor responded that Complainant did not have an EEO violation and told him that "he could not do anything about it." Further, Complainant contends that Counselor RF was supposed to send him a package that he never received. Complainant further contends that he did not follow up with Counselor RF because of depression and the medications he was prescribed inhibited him from doing so. ANAYLSIS 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 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. Whether the AJ's dismissal in this case was appropriate hinges on whether or not Complainant's June 10, 2008 contact with Counselor RF was made with the intent to pursue the EEO complaint process. Although Complainant contacted the Agency's EEO office to express his concern about his termination on June 10, 2008, we find that this contact did not constitute an initial EEO Counselor contact for the purposes of 29 C.F.R. §1614. The Commission has held that, in order to establish EEO Counselor contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996). Here, we concur with the AJ that Complainant's contact with the EEO office in June 10, 2008, was insufficient to constitute EEO Counselor contact and initiation of the EEO process because there is no indication that Complainant exhibited the requisite intent to pursue the process. The record shows that on the June 10, 2008 Contact Summary Sheet, Counselor RF indicated: [Complainant] acknowledged that he did not believe discrimination played a role in his termination other that what was mentioned above. He said that he would review the EEOC website for further information on the EEO Protected Classes. I notified him of the 45-day requirement and notified him that at this point I would be taking no further action unless he notified me otherwise of his intent to file an EEO Complaint. A letter was sent June 10, 2008, to his home address to memorialize our conversation. Investigative File, Tab G-5, pp. 372-373. We note that, on appeal, Complainant contends that he contacted Counselor RF on June 10, 2008, with the intention of filing an EEO complaint, but that Counselor RF indicated that he could not help. However, it is undisputed that counselor RF did not take any action and that Complainant did not follow up with counselor RF until March 9, 2009, which was 8 months after his initial contact. We find that Complainant's delay in following up with Counselor RF indicates that he did not intend to begin the EEO process until that time. Consequently, as Complainant's March 9, 2009, EEO counselor contact occurred more than 45 days after his May 28, 2008 termination, it was untimely.1 CONCLUSION Accordingly, the Agency's final decision adopting the AJ's decision dismissing Complainant's complaint is AFFIRMED. 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 (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 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 ___9/7/10_______________ Date 1 On appeal, Complainant contends that medication and depression inhibited him, but he failed to provide sufficient evidence that indicates that he was so physically or emotionally incapacitated as to be unable to make timely EEO Counselor contact. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (October 29, 1992); Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989). ?? ?? ?? ??	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Allen v. USPS, EEOC Request No. 05950933 (July 8, 1996)", "Crear v. United States Postal Serv., EEOC Request No. 05920700 (October 29, 1992)", "Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989)", ...	[ -0.05760578438639641, 0.0605565570294857, -0.035260990262031555, 0.02138381078839302, 0.0392666794359684, 0.04443882405757904, 0.05901769548654556, 0.017030511051416397, -0.0292929969727993, -0.005861213430762291, 0.05166636407375336, -0.02410152181982994, -0.012579001486301422, 0.00601243...
92	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01995626.r.txt	01995626.r.txt	TXT	text/plain	10,372		June 16, 1999	Appeal Number: 01995626 Case Facts: Complainant filed the instant appeal from the agency's decision dated June 16, 1999, dismissing complainant's complaint for failure to timely contact an EEO Counselor pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as 29 C.F.R. § 1614.107(a)(2)).<1> Complainant alleged that he was discriminatorily non-selected for a position on January 14, 1999. Complainant signed and dated the informal complaint processing form on March 10, 1999. On appeal, complainant argues that he contacted EEO Counselor A on February 3, 1999. At this meeting, complainant states, he discussed the non-selection claim with EEO Counselor A and expressed an intent to initiate the EEO process. In response, the agency submitted a letter from the Internal Program Manager, who states that he spoke with the identified EEO Counselor. The Manager stated that he verified that on February 3, 1999, complainant only contacted the Counselor for informational purposes and indicated that he did not want to file a complaint at the time because he was afraid it might negatively impact on a job offer he was trying to get in Washington, D.C. According to the Manager, complainant did not initiate EEO contact until March 10, 1999. In rebuttal, complainant states that as a previous EEO Counselor, he was very aware that a complaint would be dismissed if untimely. According to complainant, he initiated EEO contact on February 3, 1999, and only requested that the Counselor delay contacting the management team so as not to adversely impact his job offer. Complainant states that the EEO Counselor stated that she would contact the Internal Program Manager and inform him that the March 10, 1999 contact date was an error. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that a complainant bring a claim of discrimination to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the alleged discriminatory event. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intend to pursue EEO counseling when he initiates EEO contact. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). Given the conflicting evidence of record, we find that this matter must be remanded to the agency for a supplemental investigation. Complainant contends that he contacted an EEO Counselor on February 3, 1999, to initiate EEO contact; the Internal Program Manager contends that complainant's EEO contact on February 3, 1999, was strictly informational and not to initiate the EEO process. Clearly, a statement from the identified EEO Counselor would be helpful in resolving this evidentiary conflict. Therefore, the agency's decision is VACATED and the case is REMANDED for supplemental investigation in accordance with the following ORDER and applicable regulations. ORDER The agency shall conduct a supplemental investigation regarding complainant's initial EEO contact. Specifically, the agency shall obtain a statement from the identified EEO Counselor regarding complainant's EEO contact of February 3, 1999, i.e., whether that contact was for informational purposes or to initiate an EEO complaint. The agency shall supplement the record with any other evidence relevant to the determination of the timeliness of complainant's EEO contact. Thereafter, within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new final decision or notice of processing. A copy of the notice of processing or new final decision shall be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).	Martin Walker, ) Complainant, ) ) v. ) Appeal No. 01995626 ) Agency No. 5995057 Rodney E. Slater, ) Secretary, ) Department of Transportation, ) Agency. ) ____________________________________) DECISION Complainant filed the instant appeal from the agency's decision dated June 16, 1999, dismissing complainant's complaint for failure to timely contact an EEO Counselor pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as 29 C.F.R. § 1614.107(a)(2)).<1> Complainant alleged that he was discriminatorily non-selected for a position on January 14, 1999. Complainant signed and dated the informal complaint processing form on March 10, 1999. On appeal, complainant argues that he contacted EEO Counselor A on February 3, 1999. At this meeting, complainant states, he discussed the non-selection claim with EEO Counselor A and expressed an intent to initiate the EEO process. In response, the agency submitted a letter from the Internal Program Manager, who states that he spoke with the identified EEO Counselor. The Manager stated that he verified that on February 3, 1999, complainant only contacted the Counselor for informational purposes and indicated that he did not want to file a complaint at the time because he was afraid it might negatively impact on a job offer he was trying to get in Washington, D.C. According to the Manager, complainant did not initiate EEO contact until March 10, 1999. In rebuttal, complainant states that as a previous EEO Counselor, he was very aware that a complaint would be dismissed if untimely. According to complainant, he initiated EEO contact on February 3, 1999, and only requested that the Counselor delay contacting the management team so as not to adversely impact his job offer. Complainant states that the EEO Counselor stated that she would contact the Internal Program Manager and inform him that the March 10, 1999 contact date was an error. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that a complainant bring a claim of discrimination to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the alleged discriminatory event. The Commission has held that in order to establish EEO Counselor contact, an individual must contact an agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of tolling the time limit, requires at a minimum that the complainant intend to pursue EEO counseling when he initiates EEO contact. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). Given the conflicting evidence of record, we find that this matter must be remanded to the agency for a supplemental investigation. Complainant contends that he contacted an EEO Counselor on February 3, 1999, to initiate EEO contact; the Internal Program Manager contends that complainant's EEO contact on February 3, 1999, was strictly informational and not to initiate the EEO process. Clearly, a statement from the identified EEO Counselor would be helpful in resolving this evidentiary conflict. Therefore, the agency's decision is VACATED and the case is REMANDED for supplemental investigation in accordance with the following ORDER and applicable regulations. ORDER The agency shall conduct a supplemental investigation regarding complainant's initial EEO contact. Specifically, the agency shall obtain a statement from the identified EEO Counselor regarding complainant's EEO contact of February 3, 1999, i.e., whether that contact was for informational purposes or to initiate an EEO complaint. The agency shall supplement the record with any other evidence relevant to the determination of the timeliness of complainant's EEO contact. Thereafter, within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new final decision or notice of processing. A copy of the notice of processing or new final decision shall be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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). COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: May 3, 2000 Date Carlton M. Hadden, Acting Director Office of Federal Operations 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov.	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C....	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93	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a40402.txt	01a40402.txt	TXT	text/plain	9,924	Doris A. Richardson v. Department of the Navy 01A40402 April 12, 2004 . Doris A. Richardson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.	April 12, 2004	Appeal Number: 01A40402 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision 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. On February 5, 2003, complainant contacted the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. On May 21, 2003, complainant filed a formal complaint. Therein, complainant claimed that she was subjected to discrimination on the bases of race and sex when she was removed from a detail position and not promoted to the GS-6 level. According to the EEO Counselor's Report, complainant claimed that on June 3, 2002, she accepted a detail position on the Data Management Brand, after being told by a named manager that she could be promoted to the G-6 level very soon if she accepted the detail. Complainant stated that she was not promoted, and that on September 30, 2002, she was informed that she would be returned to her previous workplace with no chance to advance to the GS-6 level. Complainant stated that she learned on or about October 1, 2002, that a white male replaced her in her previous position in the Data Management Brand, with a GS-9 level. The EEO Counselor Report also indicates that when the EEO Counselor requested that complainant provide an explanation for not contacting an EEO Counselor until February 5, 2003, complainant stated that she was unaware of the applicable time period for contacting an EEO Counselor. In its final decision dated September 30, 2003, the agency dismissed complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The agency determined that the alleged discriminatory action occurred on October 1, 2002, but that complainant did not contact an EEO Counselor until February 5, 2003, which is beyond the requisite 45 days. In response to complainant's contention that she was unaware of the deadlines, the agency determined that complainant participated in EEO training on June 20, 2002, where the EEO complaint process was discussed, and that complainant previously participated in the EEO complaint process. Additionally, the agency argues that posters addressing the time limitation periods are posted throughout the facility where complainant was employed. In support of this argument, the agency submits a recent EEO poster from the facility as an example of the type of posters that had been on display. The poster states that a complainant should contact an EEO Counselor within forty- five days of the alleged discriminatory act. Legal Analysis: 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request 05910474 (September 12, 1991). We have previously held that a generalized affirmation that an agency posted EEO information, without specific evidence that the poster contained notice of the time limits, is insufficient for constructive knowledge of the time limits for EEO Counselor contact. Pride v. USPS, EEOC Request No. 05930134 (August 19,1993). The Commission determines that the agency has proffered more than a generalized affirmation that it has posted EEO information. Specifically, the record contains a copy of an EEO poster containing the applicable time limit for initiating EEO contact and addressing the necessity for initiating timely EEO contact. Additionally, the record contains evidence that complainant attended EEO training on June 20, 2002. Specifically, the agency submits a copy of complainant's training report and a copy of the training presentation, which included the 45-time limit to contact an EEO Counselor. We are, therefore, unpersuaded by complainant's contention that she was unaware of the limitation period for initiating timely contact with an EEO Counselor. Moreover, we find that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination with respect to her removal and non-promotion, well prior to the forty-five day period that preceded her initial EEO Counselor contact on February 5, 2003. Complainant stated that she was notified of her removal and non-promotion on September 30, 2002, and that the most recent incident of alleged discrimination occurred on or about October 1, 2002, when she learned that a white male replaced her with a higher grade. Complainant has failed to submit adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation period beyond forty-five days. Final Decision: Accordingly, the agency's decision to dismiss complainant's complaint for failure to initiate timely EEO Counselor contact was proper and is AFFIRMED.	Doris A. Richardson v. Department of the Navy 01A40402 April 12, 2004 . Doris A. Richardson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01A40402 Agency No. 0362980001 DECISION Complainant filed a timely appeal with this Commission from the final agency decision 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. On February 5, 2003, complainant contacted the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. On May 21, 2003, complainant filed a formal complaint. Therein, complainant claimed that she was subjected to discrimination on the bases of race and sex when she was removed from a detail position and not promoted to the GS-6 level. According to the EEO Counselor's Report, complainant claimed that on June 3, 2002, she accepted a detail position on the Data Management Brand, after being told by a named manager that she could be promoted to the G-6 level very soon if she accepted the detail. Complainant stated that she was not promoted, and that on September 30, 2002, she was informed that she would be returned to her previous workplace with no chance to advance to the GS-6 level. Complainant stated that she learned on or about October 1, 2002, that a white male replaced her in her previous position in the Data Management Brand, with a GS-9 level. The EEO Counselor Report also indicates that when the EEO Counselor requested that complainant provide an explanation for not contacting an EEO Counselor until February 5, 2003, complainant stated that she was unaware of the applicable time period for contacting an EEO Counselor. In its final decision dated September 30, 2003, the agency dismissed complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The agency determined that the alleged discriminatory action occurred on October 1, 2002, but that complainant did not contact an EEO Counselor until February 5, 2003, which is beyond the requisite 45 days. In response to complainant's contention that she was unaware of the deadlines, the agency determined that complainant participated in EEO training on June 20, 2002, where the EEO complaint process was discussed, and that complainant previously participated in the EEO complaint process. Additionally, the agency argues that posters addressing the time limitation periods are posted throughout the facility where complainant was employed. In support of this argument, the agency submits a recent EEO poster from the facility as an example of the type of posters that had been on display. The poster states that a complainant should contact an EEO Counselor within forty- five days of the alleged discriminatory act. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request 05910474 (September 12, 1991). We have previously held that a generalized affirmation that an agency posted EEO information, without specific evidence that the poster contained notice of the time limits, is insufficient for constructive knowledge of the time limits for EEO Counselor contact. Pride v. USPS, EEOC Request No. 05930134 (August 19,1993). The Commission determines that the agency has proffered more than a generalized affirmation that it has posted EEO information. Specifically, the record contains a copy of an EEO poster containing the applicable time limit for initiating EEO contact and addressing the necessity for initiating timely EEO contact. Additionally, the record contains evidence that complainant attended EEO training on June 20, 2002. Specifically, the agency submits a copy of complainant's training report and a copy of the training presentation, which included the 45-time limit to contact an EEO Counselor. We are, therefore, unpersuaded by complainant's contention that she was unaware of the limitation period for initiating timely contact with an EEO Counselor. Moreover, we find that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination with respect to her removal and non-promotion, well prior to the forty-five day period that preceded her initial EEO Counselor contact on February 5, 2003. Complainant stated that she was notified of her removal and non-promotion on September 30, 2002, and that the most recent incident of alleged discrimination occurred on or about October 1, 2002, when she learned that a white male replaced her with a higher grade. Complainant has failed to submit adequate justification pursuant to 29 C.F.R. § 1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, the agency's decision to dismiss complainant's complaint for failure to initiate timely EEO Counselor contact was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 April 12, 2004 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Pride v. USPS, EEOC Request No. 05930134 (August 19,1993)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U....	[ -0.12694419920444489, 0.061163388192653656, 0.019642658531665802, 0.01918717846274376, -0.0008344166562892497, 0.04454355686903, -0.0005468668532557786, -0.0052060699090361595, -0.08259183913469315, 0.06331034004688263, 0.056344106793403625, 0.008955440483987331, 0.013440674170851707, -0.0...
94	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A50273.txt	01A50273.txt	TXT	text/plain	8,300	01A50273 January 13, 2005 . Brent E. Richardson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.	January 13, 2005	Appeal Number: 01A50273 Case Facts: Legal Analysis: Upon review, the Commission finds that the final agency decision (FAD) properly dismissed the complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The complainant claimed that he was discriminated against based on his sex (male), disability (hearing impaired) and reprisal for prior EEO activity when (1) from October 2002 to April 2003, he was sexually harassed, and (2) effective April 26, 2003, under market based pay, he was converted to lower pay level PB 3D. The complainant worked as an assistant store manager at an exchange in Kosovo. All the claimed sexual harassment occurred there. He was reassigned to Fort Benning, Georgia on August 16, 2003. The complainant contacted an EEO counselor on January 15, 2004. The time limit to contact an EEO counselor is 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. 29 C.F.R. § 1614.105(a)(1). In dismissing the complaint, the FAD reasoned that the complainant contacted an EEO counselor more than 45 days after the alleged discriminatory actions occurred. The complainant attended a class entitled EEO for Managers in March 1997, and was trained by the agency as an EEO investigator in 1999. He was informed of the 45 day time limit in the March 1997 class, and does not claim he was unaware of the time limit. Prior to his appeal, the complainant explained that he did not contact an EEO counselor in Kosovo because there was no EEO poster identifying the EEO counselor for that exchange. He also explained that in February 2003 he told his General Manager he was ready to call the region for EEO assistance because he was being sexually harassed. The complainant stated the General Manager told him not to do so and she would handle the matter, and this lead him to believe there was no EEO counselor assigned to service the exchange in Kosovo. The complainant explained that he delayed contacting an EEO counselor on his pay conversion claim in part because he previously appealed the matter and was waiting for an answer. Explaining his delay, the complainant added that the individual who he identified as the perpetrator of the sexual harassment, his manager, as well as an official who condoned it, got promotions upon their return to the United States (not to the same locations as the complainant), and he did not learn this until late December 2003. The complainant stated the promotions both showed the perpetrator was not disciplined for the harassment and led the complainant to believe he was discriminated against on the pay conversion matter because the individuals who got promotions do not have a disability. He suggested this prompted him to contact an EEO counselor in January 2004. The complainant's explanation of why he did not contact an EEO counselor in Kosovo does not justify his continued delay after he returned to an agency facility in the United States, especially in light of the fact that he was trained as an EEO investigator. The complainant, an assistant manager, was trained as an EEO investigator, attended EEO for Managers training where the 45 day time limit to seek EEO counseling was covered, and was an assistant manager of an exchange. He was aware of the EEO process, including the 45 day time limit to seek EEO counseling. The complainant's partial explanation of delaying because he was waiting for an answer on his pay conversion appeal does not justify his delay. The Commission has consistently held that utilization of internal agency procedures and other remedial processes does not toll the time limitations period for contacting an EEO counselor. The complainant was aware of the claimed sexual harassment when it occurred. Learning that there was no discipline does not justify delay in seeking EEO counseling. Further, the complainant also contended that his pay conversion rate of April 2003 occurred in reprisal for him accusing the perpetrator of sexual harassment. The complainant, therefore, believed the pay rate matter was discriminatory when it occurred. The complainant has not given adequate justification for untimely seeking EEO counseling. Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is affirmed.	Brent E. Richardson v. Army & Air Force Exchange Service (AAFES) 01A50273 January 13, 2005 . Brent E. Richardson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency. Appeal No. 01A50273 Agency No. 04.045 DECISION Upon review, the Commission finds that the final agency decision (FAD) properly dismissed the complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The complainant claimed that he was discriminated against based on his sex (male), disability (hearing impaired) and reprisal for prior EEO activity when (1) from October 2002 to April 2003, he was sexually harassed, and (2) effective April 26, 2003, under market based pay, he was converted to lower pay level PB 3D. The complainant worked as an assistant store manager at an exchange in Kosovo. All the claimed sexual harassment occurred there. He was reassigned to Fort Benning, Georgia on August 16, 2003. The complainant contacted an EEO counselor on January 15, 2004. The time limit to contact an EEO counselor is 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. 29 C.F.R. § 1614.105(a)(1). In dismissing the complaint, the FAD reasoned that the complainant contacted an EEO counselor more than 45 days after the alleged discriminatory actions occurred. The complainant attended a class entitled EEO for Managers in March 1997, and was trained by the agency as an EEO investigator in 1999. He was informed of the 45 day time limit in the March 1997 class, and does not claim he was unaware of the time limit. Prior to his appeal, the complainant explained that he did not contact an EEO counselor in Kosovo because there was no EEO poster identifying the EEO counselor for that exchange. He also explained that in February 2003 he told his General Manager he was ready to call the region for EEO assistance because he was being sexually harassed. The complainant stated the General Manager told him not to do so and she would handle the matter, and this lead him to believe there was no EEO counselor assigned to service the exchange in Kosovo. The complainant explained that he delayed contacting an EEO counselor on his pay conversion claim in part because he previously appealed the matter and was waiting for an answer. Explaining his delay, the complainant added that the individual who he identified as the perpetrator of the sexual harassment, his manager, as well as an official who condoned it, got promotions upon their return to the United States (not to the same locations as the complainant), and he did not learn this until late December 2003. The complainant stated the promotions both showed the perpetrator was not disciplined for the harassment and led the complainant to believe he was discriminated against on the pay conversion matter because the individuals who got promotions do not have a disability. He suggested this prompted him to contact an EEO counselor in January 2004. The complainant's explanation of why he did not contact an EEO counselor in Kosovo does not justify his continued delay after he returned to an agency facility in the United States, especially in light of the fact that he was trained as an EEO investigator. The complainant, an assistant manager, was trained as an EEO investigator, attended EEO for Managers training where the 45 day time limit to seek EEO counseling was covered, and was an assistant manager of an exchange. He was aware of the EEO process, including the 45 day time limit to seek EEO counseling. The complainant's partial explanation of delaying because he was waiting for an answer on his pay conversion appeal does not justify his delay. The Commission has consistently held that utilization of internal agency procedures and other remedial processes does not toll the time limitations period for contacting an EEO counselor. The complainant was aware of the claimed sexual harassment when it occurred. Learning that there was no discipline does not justify delay in seeking EEO counseling. Further, the complainant also contended that his pay conversion rate of April 2003 occurred in reprisal for him accusing the perpetrator of sexual harassment. The complainant, therefore, believed the pay rate matter was discriminatory when it occurred. The complainant has not given adequate justification for untimely seeking EEO counseling. Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 January 13, 2005 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.06972953677177429, 0.08518214523792267, -0.019937608391046524, 0.042123258113861084, 0.02546788565814495, 0.011485740542411804, 0.05462179332971573, -0.024021750316023827, -0.008947628550231457, 0.05096343159675598, 0.04923524335026741, -0.04545345902442932, -0.0011549704940989614, -0.0...
95	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A61622.txt	01A61622.txt	TXT	text/plain	10,999	Michael J. Wright, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.	December 28, 2005	Appeal Number: 01A61622 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated December 28, 2005, dismissing his 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. On April 6, 2005, complainant initiated contact with the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. On May 12, 2005, complainant filed the instant complaint. Therein, complainant claimed that he was subjected to discrimination on the bases of race, sex, age and in reprisal for prior protected EEO activity when: 1. in August 2004, he was denied a performance award for the evaluation period of March 2003 to March 2004; and 2. on January 12, 2005, he was reassigned from El Paso, Texas to Las Cruces, New Mexico without receiving a paid move, as a result of him reporting a disclosure issue. In its December 28, 2005 final decision, the agency dismissed the instant 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 occurred on April 6, 2005, which it found to be beyond the 45-day limitation period. The agency further stated that the EEO Counselor requested that complainant provide an explanation for not initiating EEO contact until April 6, 2005. Complainant replied that he was unaware of the 45-day limitation period; and that did not develop a reasonable suspicion of unlawful employment discrimination until March 30, 2005, when he met with his attorney concerning the reassignment (claim 2). The agency noted that complainant claimed that there were no EEO posters on display at the agency's Las Cruces, New Mexico facility. Complainant further claimed that he contacted the Commission office in San Antonio, Texas to report that his reassignment was based on retaliation (claim 2). Complainant claimed that following a February 22, 2005 meeting with the Field Operations Director in Phoenix, Arizona concerning his reassignment, he again contacted the Commission and was told he needed to contact the EEO office at his facility. Complainant stated that on April 4, 2005, he looked all over the Las Cruces facility again and found no EEO posters on display; and contacted a party at the agency's El Paso, Texas facility to get contact number from the EEO poster on display at that location. Complainant stated that upon receiving the contact number, he contacted the agency's Houston office and left his name and telephone number. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to his April 6, 2005 EEO contact. Specifically, the agency submitted a declaration from the Territory EEO Manager over the Las Cruces and El Paso facilities indicating that EEO posters outlining the 45-day requisite time period were posted during the relevant period. The agency determined that according to the Territory EEO Manger's declaration, the EEO posters containing time limits were posted on the bulletin boards in the break room of the Las Cruces and El Paso facilities. Legal Analysis: the Commission office in San Antonio, Texas to report that his reassignment was based on retaliation (claim 2). Complainant claimed that following a February 22, 2005 meeting with the Field Operations Director in Phoenix, Arizona concerning his reassignment, he again contacted the Commission and was told he needed to contact the EEO office at his facility. Complainant stated that on April 4, 2005, he looked all over the Las Cruces facility again and found no EEO posters on display; and contacted a party at the agency's El Paso, Texas facility to get contact number from the EEO poster on display at that location. Complainant stated that upon receiving the contact number, he contacted the agency's Houston office and left his name and telephone number. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to his April 6, 2005 EEO contact. Specifically, the agency submitted a declaration from the Territory EEO Manager over the Las Cruces and El Paso facilities indicating that EEO posters outlining the 45-day requisite time period were posted during the relevant period. The agency determined that according to the Territory EEO Manger's declaration, the EEO posters containing time limits were posted on the bulletin boards in the break room of the Las Cruces and El Paso facilities. 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 properly dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. The record supports a finding that complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. The April 6, 2005 EEO contract occurred beyond the forty-five (45) day time limit. The record contains a declaration from the EEO Territory Manager in which she confirmed the existence of EEO positions within the Las Cruces and El Paso facilities that contained all important relevant information on the 45-day limitation; and a copy of the EEO poster outlining the requisite time period. Moreover, we are unpersuaded by complainant's assertion that he only developed a reasonable suspicion of unlawful employment discrimination on March 30, 2005, thereby rendering timely his initial EEO contact. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 0590065 (March 29, 1990). The Commission finds that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination at least at the time of the denial of his performance award in August 2004 (claim 1); and his January 2005 reassignment (claim 2). Complainant has failed to provide sufficient justification for extending or tolling the time limitation. Final Decision: Accordingly, the agency's final decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED.	Michael J. Wright, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency. Appeal No. 01A61622 Agency No. 05-2370 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated December 28, 2005, dismissing his 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. On April 6, 2005, complainant initiated contact with the EEO office. Informal efforts to resolve complainant's concerns were unsuccessful. On May 12, 2005, complainant filed the instant complaint. Therein, complainant claimed that he was subjected to discrimination on the bases of race, sex, age and in reprisal for prior protected EEO activity when: 1. in August 2004, he was denied a performance award for the evaluation period of March 2003 to March 2004; and 2. on January 12, 2005, he was reassigned from El Paso, Texas to Las Cruces, New Mexico without receiving a paid move, as a result of him reporting a disclosure issue. In its December 28, 2005 final decision, the agency dismissed the instant 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 occurred on April 6, 2005, which it found to be beyond the 45-day limitation period. The agency further stated that the EEO Counselor requested that complainant provide an explanation for not initiating EEO contact until April 6, 2005. Complainant replied that he was unaware of the 45-day limitation period; and that did not develop a reasonable suspicion of unlawful employment discrimination until March 30, 2005, when he met with his attorney concerning the reassignment (claim 2). The agency noted that complainant claimed that there were no EEO posters on display at the agency's Las Cruces, New Mexico facility. Complainant further claimed that he contacted the Commission office in San Antonio, Texas to report that his reassignment was based on retaliation (claim 2). Complainant claimed that following a February 22, 2005 meeting with the Field Operations Director in Phoenix, Arizona concerning his reassignment, he again contacted the Commission and was told he needed to contact the EEO office at his facility. Complainant stated that on April 4, 2005, he looked all over the Las Cruces facility again and found no EEO posters on display; and contacted a party at the agency's El Paso, Texas facility to get contact number from the EEO poster on display at that location. Complainant stated that upon receiving the contact number, he contacted the agency's Houston office and left his name and telephone number. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to his April 6, 2005 EEO contact. Specifically, the agency submitted a declaration from the Territory EEO Manager over the Las Cruces and El Paso facilities indicating that EEO posters outlining the 45-day requisite time period were posted during the relevant period. The agency determined that according to the Territory EEO Manger's declaration, the EEO posters containing time limits were posted on the bulletin boards in the break room of the Las Cruces and El Paso facilities. 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 properly dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. The record supports a finding that complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. The April 6, 2005 EEO contract occurred beyond the forty-five (45) day time limit. The record contains a declaration from the EEO Territory Manager in which she confirmed the existence of EEO positions within the Las Cruces and El Paso facilities that contained all important relevant information on the 45-day limitation; and a copy of the EEO poster outlining the requisite time period. Moreover, we are unpersuaded by complainant's assertion that he only developed a reasonable suspicion of unlawful employment discrimination on March 30, 2005, thereby rendering timely his initial EEO contact. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 0590065 (March 29, 1990). The Commission finds that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination at least at the time of the denial of his performance award in August 2004 (claim 1); and his January 2005 reassignment (claim 2). Complainant has failed to provide sufficient justification for extending or tolling the time limitation. Accordingly, the agency's final decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 July 20, 2006 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Bracken v. United States Postal Service, EEOC Request No. 0590065 (March 29, 1990)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 ...	[ -0.0960066020488739, 0.10232198238372803, 0.01012750156223774, 0.04403417930006981, 0.02774832956492901, 0.032606273889541626, -0.01153078768402338, -0.0020062392577528954, -0.07795702666044235, -0.00982308853417635, 0.06233244016766548, -0.026281287893652916, -0.03819270804524422, -0.0032...
96	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01992123.txt	01992123.txt	TXT	text/plain	8,569		December 15, 1998	Appeal Number: 01992123 Case Facts: We find that the agency's December 15, 1998 decision dismissing Complainant's complaint on the grounds of untimely EEO counselor contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.107(a)(2).<1> The record shows that complainant contacted the EEO office on August 7, 1998, alleging that she had been discriminated against on the bases of race and sex when on July 17, 1998, she was not selected for the position of Manager, Natural Gas Supply. The EEO Counselor's Report states that complainant contacted an EEO Counselor on August 7, 1998, and met with the EEO Director on August 10, 1998. However, the Report also reflects that when complainant met with the Senior EEO Specialist on August 27, 1998, she specifically stated that she did not want to begin the EEO process at that time and that she would make a decision by September 8, 1998". The record reflects that on October 15, 1998, complainant stated that she wished to begin the EEO complaint process. Complainant subsequently filed a formal complaint of discrimination alleging that she had been discriminated against on the bases of race and sex when on July 17, 1998, she was not selected for the position of Manager, Natural Gas Supply. The agency issued a final decision dismissing the complaint on the grounds of untimely EEO counselor contact. The agency noted that complainant's October 15, 1998 EEO counselor contact had occurred beyond the 45-day time limit provided by Legal Analysis: EEOC Regulations. On appeal, complainant contends that during her meeting with the Senior EEO Specialist he advised her to contact him by September 8, 1998. Complainant further contends that because this date was outside the 45 day time limit, [she] left the meeting completely confident that she had satisfied the time requirements. Complainant acknowledges that she had not begun the EEO complaint process previously because she was not prepared to confront the selecting manager in the capacity of a complainant in an EEO complaint [but] that it was not meant to address whether her intent was to file or not to file a complaint. In response to complainant's contentions, the agency has provided affidavits executed by the Senior EEO Specialist and the EEO Director. In his affidavit, the EEO Director states that during their August 10, 1998 meeting, he explained the EEO complaint process and the 45-day time limit to complainant. He further states that complainant did not indicate that she wished to begin the pre-complaint counseling process. In his affidavit, the Senior EEO Specialist states that when he met with complainant on August 27, 1998 and discussed the EEO process with her, he specifically advised her to initiate the pre-complaint process within 45 days from the date she learned of the alleged discrimination, July 17, 1998". The Senior EEO Specialist further indicated that it was complainant, not he, who suggested the September 8, 1998 date. A review of the record persuades the Commission that the final agency decision was proper. The Commission has held that EEO counselor contact for purposes of tolling the 45-day time limit requires at a minimum that a complainant intend to pursue EEO counseling when the Complainant initiates EEO contact. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990); Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (March 4, 1994). We do not find such intent in complainant's EEO counselor contacts prior to October 15, 1998. Final Decision: Accordingly, the final agency decision was proper and is hereby AFFIRMED.	Sharon M. Simmons, ) Complainant, ) ) v. ) Appeal No. 01992123 ) Agency No. 1204-99008 Craven H. Crowell, Jr., ) Chairman, ) Tennessee Valley Authority, ) Agency. ) ______________________________) DECISION We find that the agency's December 15, 1998 decision dismissing Complainant's complaint on the grounds of untimely EEO counselor contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.107(a)(2).<1> The record shows that complainant contacted the EEO office on August 7, 1998, alleging that she had been discriminated against on the bases of race and sex when on July 17, 1998, she was not selected for the position of Manager, Natural Gas Supply. The EEO Counselor's Report states that complainant contacted an EEO Counselor on August 7, 1998, and met with the EEO Director on August 10, 1998. However, the Report also reflects that when complainant met with the Senior EEO Specialist on August 27, 1998, she specifically stated that she did not want to begin the EEO process at that time and that she would make a decision by September 8, 1998". The record reflects that on October 15, 1998, complainant stated that she wished to begin the EEO complaint process. Complainant subsequently filed a formal complaint of discrimination alleging that she had been discriminated against on the bases of race and sex when on July 17, 1998, she was not selected for the position of Manager, Natural Gas Supply. The agency issued a final decision dismissing the complaint on the grounds of untimely EEO counselor contact. The agency noted that complainant's October 15, 1998 EEO counselor contact had occurred beyond the 45-day time limit provided by EEOC Regulations. On appeal, complainant contends that during her meeting with the Senior EEO Specialist he advised her to contact him by September 8, 1998. Complainant further contends that because this date was outside the 45 day time limit, [she] left the meeting completely confident that she had satisfied the time requirements. Complainant acknowledges that she had not begun the EEO complaint process previously because she was not prepared to confront the selecting manager in the capacity of a complainant in an EEO complaint [but] that it was not meant to address whether her intent was to file or not to file a complaint. In response to complainant's contentions, the agency has provided affidavits executed by the Senior EEO Specialist and the EEO Director. In his affidavit, the EEO Director states that during their August 10, 1998 meeting, he explained the EEO complaint process and the 45-day time limit to complainant. He further states that complainant did not indicate that she wished to begin the pre-complaint counseling process. In his affidavit, the Senior EEO Specialist states that when he met with complainant on August 27, 1998 and discussed the EEO process with her, he specifically advised her to initiate the pre-complaint process within 45 days from the date she learned of the alleged discrimination, July 17, 1998". The Senior EEO Specialist further indicated that it was complainant, not he, who suggested the September 8, 1998 date. A review of the record persuades the Commission that the final agency decision was proper. The Commission has held that EEO counselor contact for purposes of tolling the 45-day time limit requires at a minimum that a complainant intend to pursue EEO counseling when the Complainant initiates EEO contact. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990); Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (March 4, 1994). We do not find such intent in complainant's EEO counselor contacts prior to October 15, 1998. Accordingly, the final agency decision was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1199) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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 (S1199) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Dec. 23, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: ________ _____________________________ DATE Equal Employment Assistant1 On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all Federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV.	[ "Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990)", "Mitchell v. Department of Commerce, EEOC Appeal No. 01934119 (March 4, 1994)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791"...	[ -0.07800977677106857, 0.05361378565430641, 0.002015239093452692, 0.07869036495685577, 0.08741352707147598, 0.0016306607285514474, 0.07237035036087036, 0.05750339478254318, -0.061521418392658234, 0.039090462028980255, 0.03798164799809456, -0.03538725897669792, -0.0006840490968897939, 0.0124...
97	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53938.txt	01a53938.txt	TXT	text/plain	7,185	Pierre Baney, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.	September 15, 2005	Appeal Number: 01A53938 Case Facts: Legal Analysis: Upon review, the Commission finds that complainant's complaint, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. On August 18, 2004, complainant filed a complaint alleging that he was subjected to discrimination on the bases of sex and age and in reprisal for prior EEO activity when the position of Teacher was filled by a minority while he was on active duty during June 2, 2002,and January 2003, and he was not allowed to compete for a job. Complainant filed a second complaint in September of 2004, as the class agent for Caucasian employees with prior EEO activity who were denied the opportunity to attend training of which he was notified on August 9 2004. The agency consolidated both complaints. The agency forwarded the complaint to an Administrative Judge (AJ). The AJ found that the complainant failed to timely seek EEO counseling and that the complaint failed to meet the requirements for acceptance as a class complaint. The agency's final order dated April 13, 2005, accepted the AJ's dismissal of complainant's complaint. The record reveals that complainant failed to seek EEO counseling. Complainant asserted that the EEO counselor had a conflict of interest and, for this reason, he refused to contact the EEO counselor. He stated that he refused to accept calls from the EEO counselor. The record further reveals that complainant had filed previous complaints and was aware his obligation to contact an EEO counselor prior to filing a written complaint of discrimination. Specifically, the EEO counselor stated that he had counseled complainant on numerous occasions. He stated that he was the only EEO counselor at the facility where complainant was employed and complainant had never sought EEO counseling on the issues contained in the instant complaint. Since complainant was alleging discrimination regarding the issue in the first complaint which occurred during June 2, 2002 through January 2003, he failed to timely contact an EEO counselor within 45 days of the alleged discriminatory act. Concerning the issue in the second complaint, we find that complaint refused to contact his EEO counselor in a timely manner. Complainant has failed to demonstrate that contact with an EEO Counselor would have been futile because of his belief that the EEO counselor working at his facility had a conflict of interest. Complainant did not provide any specific information as to why the EEO counselor had a conflict of interest. Complainant's stated belief, without more, does not justify his failure to follow the regulatory procedures. On appeal, complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint for untimely EEO counselor contact is affirmed.	John-Pierre Baney v. Department of Justice 01A53938 September 15, 2005 . John-Pierre Baney, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency. Appeal No. 01A53938 Agency No. P20040280 DECISION Upon review, the Commission finds that complainant's complaint, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. On August 18, 2004, complainant filed a complaint alleging that he was subjected to discrimination on the bases of sex and age and in reprisal for prior EEO activity when the position of Teacher was filled by a minority while he was on active duty during June 2, 2002,and January 2003, and he was not allowed to compete for a job. Complainant filed a second complaint in September of 2004, as the class agent for Caucasian employees with prior EEO activity who were denied the opportunity to attend training of which he was notified on August 9 2004. The agency consolidated both complaints. The agency forwarded the complaint to an Administrative Judge (AJ). The AJ found that the complainant failed to timely seek EEO counseling and that the complaint failed to meet the requirements for acceptance as a class complaint. The agency's final order dated April 13, 2005, accepted the AJ's dismissal of complainant's complaint. The record reveals that complainant failed to seek EEO counseling. Complainant asserted that the EEO counselor had a conflict of interest and, for this reason, he refused to contact the EEO counselor. He stated that he refused to accept calls from the EEO counselor. The record further reveals that complainant had filed previous complaints and was aware his obligation to contact an EEO counselor prior to filing a written complaint of discrimination. Specifically, the EEO counselor stated that he had counseled complainant on numerous occasions. He stated that he was the only EEO counselor at the facility where complainant was employed and complainant had never sought EEO counseling on the issues contained in the instant complaint. Since complainant was alleging discrimination regarding the issue in the first complaint which occurred during June 2, 2002 through January 2003, he failed to timely contact an EEO counselor within 45 days of the alleged discriminatory act. Concerning the issue in the second complaint, we find that complaint refused to contact his EEO counselor in a timely manner. Complainant has failed to demonstrate that contact with an EEO Counselor would have been futile because of his belief that the EEO counselor working at his facility had a conflict of interest. Complainant did not provide any specific information as to why the EEO counselor had a conflict of interest. Complainant's stated belief, without more, does not justify his failure to follow the regulatory procedures. On appeal, complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the agency's final decision dismissing complainant's complaint for untimely EEO counselor contact is affirmed.<0> STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 15, 2005 __________________ Date 0 1Since the decision on the timeliness on the EEO counseling contact is dispositive of this appeal, the dismissal of the complaint for failing to meet the requirements for acceptance as a class complaint is not addressed by the Commission.	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 621", "29 U.S.C. §§ 791" ]	[ -0.036701686680316925, 0.08850732445716858, -0.021725598722696304, 0.0632440522313118, 0.037529218941926956, 0.07708021998405457, -0.02996026538312435, -0.0075469231233000755, -0.07425031065940857, -0.0005554735544137657, 0.042308975011110306, 0.04756053537130356, 0.03723540157079697, -0.0...
98	https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2020000131.pdf	2020000131.pdf	PDF	application/pdf	27,548	Cruz M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.	September 4, 2019	Appeal Number: 2020000131 Background: At the time of events giving rise to this complaint, Complainant worked as a n Equal Employment Opportunity Specialist, GS -0260- 11, at the Agency’s DLA Aviation facility in Richmond, Virginia. On July 27, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/or ongoing harassment (non -sexual) the bases of race ( Black ), sex (male), disability (mental ), age, and reprisal for prior protected EEO activity when: 1. On March 27, 2017, Complainant was issued a Notice of Decision – 7-day suspension by the E qual Employment Opportunity (EEO) Manager; 2. Complainant’s first- line supervisor and the Disabili ty Program Manager did not act on Complainant’s behalf with assisting in getting medical treatment for Complainant’s daughter; 3. Complainant was treated differentl y by his first -line supervisor and the EEO Manager when they did not provide Complainant with s upport and did not task Complainant with the same duties as the other female employees in the office who were provided support; 4. Complainant was retaliated agains t by the EEO Manager in Complainant’s performance review, when Complainant refused to assist the EEO Manager’s wife in writing her resume; 5. Complainant was accused of providing a responsible management official in an EEO complaint, the names of witnesses the complainant provided to Complainant; 6. On April 27, 2016, Complainant received a letter of dec ision on a proposed letter of reprimand for his lack of candor from the EEO Manager ; 7. On or around August 1, 2013, Complainant was not selected for the Supervisor y EEO Specialist position, GS -0260- 13, under JOA DLAAvn -13-921087 -MP; and 8. On or around Septembe r 25, 2013, Complainant was not selected for the EEO Specialist position, GS -0260- 12, under JOA DLAAvn- 13-9509932- MP. The Agency dismissed claims (2) through (8) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact . It accepted clai m (1) concerning the Notice of 7 -Day Suspension and conducted an investigation as to that claim only. The Agency’s investigati on produced the following pertinent evidence. With respect to his alleged basis of reprisal, Complainant a lleged that the Agenc y’s actions were in retaliation for his participation as an EEO Specialist in the internal investigation of EEO complaints for Agency employees. A Letter of Proposed Suspension dated in October 2016 (Proposal) indicates that Complainant’s first-line Super visor (Supervisor1) was proposing to suspend Complainant from duty and pay for 14 calendar days for negligent performance of duties, conduct unbecomi ng an EEO Specialist, and engaging in conduct that creates a conflict of interest with official duties. The Proposal indicates that there were two specifications regarding the negligent performance of duties. It indicates that the first incident occurred on or about August 23, 2016, when an email from Complainant’s computer containing sensitive EEO informati on was found on a copier after Complainant had left for the day. 2 The alleged bases of claims (7) and (8) were limited to sex and reprisal. The second incident occurred on or about October 7, 2016, when Supervisor1 was notified that Complainant had shared the names of potential witnesses to an EEO Complainant with a management w itness who was part of the complaint, causing the complainant and other witnesses to question the integrity of the office. The Proposal provides one specification regarding conduct unbecoming an EEO Specialist. It indicates that, on or about October 14, 2016, Complainant interviewed a manager concerning an EEO complaint and, during that interview, Complainant became unprofessional and accusatory and badgered the witness, including banging on the table and raising his voice. The Proposal provides one speci fication regarding engaging in conduct that creates a conflict of interest with official duties. It indicates that, on or about September 13, 2016, Complainant told Supervisor1 that he had advised a manager and written a statement for the same manager regar ding an EEO issue, appearing to take sides regarding the issue when he was expected to remain neutral in EEO investigations. It notes Complainant’s history of discipline, including a prior Letter of Reprimand for lack of candor and a prior Letter of Warni ng for similar misconduct as that in the instant Letter of Proposed Suspension, and references the Agency’s Table of Penalties in concluding that the proposed suspension was appropriate. Complainant submitted a memorandum dated November 17, 2016 in response to the Letter of Proposed Suspension. It indicates that, regarding the charge of negligent performance of duties, Complainant denied any negligent intent to ensure the confidentiality of the complainant’s information and explained that he connected to t he networked computer because of its proximity to his office and there were problems with the printer’s functioning; he also denied sharing a complainant’s witness information as alleged. Regarding the charge of conduct unbecoming of an EEO Specialist, he denied the allegation that he was unprofessional, accusatory, and accusatory, and that he badgered the witness and banged on the table, noting that there was not a table in the room; he also named witnesses and alleged the manager lied about how she obtai ned the witness names. Regarding the charge of engaging in conduct that creates a conflict of interest with official duties, he claimed no recollection of making the statement as alleged. A memorandum from Complainant’s second- line supervisor (Supervisor2) dated January 19, 2017 indicates that, regarding the charge of negligent performance of duties, Agency records show that Complainant completed training on personally identifiable information (PII) and cyber awareness and, therefore, Supervisor2 believes C omplainant knew or should have known that leaving the sensitive information on a printer outside the EEO office was inappropriate. It also indicates that Supervisor2 approached an employee that Complainant had indicated could verify that he did not provide witness names and the employee was unable to do so. Regarding the charge of conduct unbecoming an EEO Specialist, it indicates that, while witnesses confirmed that Complainant was Complainant was loud and contentious, they indicated that he hit the notebook rather than hitting the table with his notebook as alleged. Complainant submitted a letter dated January 29, 2017 generally continuing to deny the allegations and including letters of reference in support of his character and professionalism. A Mar ch 13, 2017 Notice of Decision – 7 Day Suspension indicates that Complainant was found to have committed the offenses as charged in the November 10, 2016 proposal. Complainant attested that he believed the suspension was not justified . He acknowledged tha t the first charge was true and accurate but denied the remaining allegations. Complainant’s first- line Supervisor (Supervisor1) attested that she proposed the suspension with Labor Relation’s guidance, but she was not involved in the final decision. Complainant’s second -line Supervisor (Supervisor2) attested that he made the ultimate decision in the suspension action at issue. He attested that he made the decision to issue the suspension because Complainant’s conduct was serious in nature and he had pri or disciplinary actions for somewhat similar conduct. He attested that he felt the action was in line with progressive discipline, as Complainant had a prior Letter of Reprimand. He attested that he reduced the suspension from 14 to 7 days because he beli eved the 7- day suspension would be sufficient to help Complainant become aware of his continued issues with processes used in the EEO office and to correct the behavior. A Human Resources Specialist (HR) attested that Supervisor2 contacted her to provide supporting evidence and to request assistance with preparing a letter relative to Complainant’s misconduct. She attested that the 7 -day suspension complies with the Agency’s Table of Penalties and it was consistent with actions taken against other employee s who committed the same misconduct. Complainant’s Team Lead (Team Lead) attested that, while she had no direct, first -hand knowledge of the events at issue, she believed Supervisor1 and Supervisor2 harassed Complainant , but she did not believe Complainant’ s race, age, protected EEO activity, and/or medical condition impacted the way management treated Complainant. She attested that she felt Supervisor2 felt threatened by Complainant because he had a lot of experience and Complainant’s sex im pacted the decis ion. She attested that, when she first arrived, the males were harassed more than the females. Complainant’s co- worker (CW1) attested t hat Supervisor1 and Supervisor2 always appeared to be cordial to Complainant and she has no reason to believe he was t reated differently based on his race, sex, age, medical condition, or prior EEO activity. CW1 attested to some of the underlying events leading to Complaina nt’s suspension. She attested that, on September 20, 2016, she assigned Complainant a complaint for processing and, on October 5, 2016, Complainant informed her that the complainant was complaining that her supervisor had contacted her witnesses and now th ose witnesses were reluctant to speak with EEO. She attested that the supervisor told her that Com plainant had provided her the witness list. CW1 attested that she reported the incident to Supervisor1 and Supervi sor2. She attested that, at one point during an interview, Complainant was asking questions in a hard and stern tone that was sort of badgerin g; he got upset , raised his voice , and banged on his notebook; he argued with the supervisor and asked questions that were not relevant, including previous EEO complaints filed against the supervisor . A February 17, 2016 Notice of Proposed Reprimand indic ates that Complainant was charged with lack of candor in connection with an instance of sending correspondence to a complainant indicating that a final interview had been conducted when it had not been conducted. An April 27, 2016 Notice of Decision – Repr imand indicates that the charge was sustained for the reason s set forth in the proposal. Regarding Complainant’s other allegations, Supervisor2 attested that Complainant had not reported feeling that he was being discriminated against or subjected to ongoin g harassment. Regarding claim (5), Supervisor2 atte sted that Complainant was the custodian of the witness list and it was compromised when a manager involved At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to reques t a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a fi nal decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that his complaint should be remanded to the Agency, noting that the persons bei ng charged with the actions at issue remained in control of the investigation and the final agency decision, creating a conflict of interest . He reiterates his claim as involving race, sex, disability, har assment and reprisal. He also argues that there are no disputes of material fact as to the Agency’s misconduct and asks that we find in his favor. In response, the Agency indicates that the only issue on appeal is that involving the 7- day suspension. In so doing, the Agency note s that the record shows that, during the initial conference with the AJ and prior to the dismissal of the request for hearing, Complai nant did not raise any objections to the dismissed claims or seek to amend his complaint. The Ag ency argues that the dismissed claims were properly dismissed , that Complainant failed to establish a prima facie case of discrimination, it has presented legitimate nondiscriminatory reasons for its actions, and Complainant has f ailed to establish that th e Agency’s actions were pr etext. The Agency also argues that Complainant failed to present a prima facie case of harassment . Regarding Complainant’s allegations of a conflict of interest, the Agency argues that this is not properly before the Commission, as Complainant did not rai se the issue prior to appeal ; the Agency also argues that, even if they are properly before the Commission, they are so vague and lacking in terms of substance, evidence, and analysis, that the Agency is unable to respond to them. The Agency asks that we affirm its final decision. Legal Analysis: the Commission, as Complainant did not rai se the issue prior to appeal ; the Agency also argues that, even if they are properly before the Commission, they are so vague and lacking in terms of substance, evidence, and analysis, that the Agency is unable to respond to them. The Agency asks that we affirm its final decision. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record with out regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on t he Commission’s own assessment of the record and its interpretation of the law”). Agency’s Investigation and Processing of the Complaint 29 C.F.R. § 1614.108(b) states, in pertinent part, that the agency shall devel op an impartial and appropriate factual record upon which to make findings on the claims raised by a complainant and defines an appropriate fac tual record as one that allows a reasonable fact finder to draw	Cruz M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020000131 Hearing No. 430-2018-00337X Agency No. DLAR-17-0188 DECISION On September 4, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 5, 2019, final decision concerning his equal employment opportunity (EE O) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a n Equal Employment Opportunity Specialist, GS -0260- 11, at the Agency’s DLA Aviation facility in Richmond, Virginia. On July 27, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/or ongoing harassment (non -sexual) the bases of race ( Black ), sex (male), disability (mental ), age, and reprisal for prior protected EEO activity when: 1. On March 27, 2017, Complainant was issued a Notice of Decision – 7-day suspension by the E qual Employment Opportunity (EEO) Manager; 2. Complainant’s first- line supervisor and the Disabili ty Program Manager did not act on Complainant’s behalf with assisting in getting medical treatment for Complainant’s daughter; 3. Complainant was treated differentl y by his first -line supervisor and the EEO Manager when they did not provide Complainant with s upport and did not task Complainant with the same duties as the other female employees in the office who were provided support; 4. Complainant was retaliated agains t by the EEO Manager in Complainant’s performance review, when Complainant refused to assist the EEO Manager’s wife in writing her resume; 5. Complainant was accused of providing a responsible management official in an EEO complaint, the names of witnesses the complainant provided to Complainant; 6. On April 27, 2016, Complainant received a letter of dec ision on a proposed letter of reprimand for his lack of candor from the EEO Manager ; 7. On or around August 1, 2013, Complainant was not selected for the Supervisor y EEO Specialist position, GS -0260- 13, under JOA DLAAvn -13-921087 -MP; and 8. On or around Septembe r 25, 2013, Complainant was not selected for the EEO Specialist position, GS -0260- 12, under JOA DLAAvn- 13-9509932- MP. The Agency dismissed claims (2) through (8) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact . It accepted clai m (1) concerning the Notice of 7 -Day Suspension and conducted an investigation as to that claim only. The Agency’s investigati on produced the following pertinent evidence. With respect to his alleged basis of reprisal, Complainant a lleged that the Agenc y’s actions were in retaliation for his participation as an EEO Specialist in the internal investigation of EEO complaints for Agency employees. A Letter of Proposed Suspension dated in October 2016 (Proposal) indicates that Complainant’s first-line Super visor (Supervisor1) was proposing to suspend Complainant from duty and pay for 14 calendar days for negligent performance of duties, conduct unbecomi ng an EEO Specialist, and engaging in conduct that creates a conflict of interest with official duties. The Proposal indicates that there were two specifications regarding the negligent performance of duties. It indicates that the first incident occurred on or about August 23, 2016, when an email from Complainant’s computer containing sensitive EEO informati on was found on a copier after Complainant had left for the day. 2 The alleged bases of claims (7) and (8) were limited to sex and reprisal. The second incident occurred on or about October 7, 2016, when Supervisor1 was notified that Complainant had shared the names of potential witnesses to an EEO Complainant with a management w itness who was part of the complaint, causing the complainant and other witnesses to question the integrity of the office. The Proposal provides one specification regarding conduct unbecoming an EEO Specialist. It indicates that, on or about October 14, 2016, Complainant interviewed a manager concerning an EEO complaint and, during that interview, Complainant became unprofessional and accusatory and badgered the witness, including banging on the table and raising his voice. The Proposal provides one speci fication regarding engaging in conduct that creates a conflict of interest with official duties. It indicates that, on or about September 13, 2016, Complainant told Supervisor1 that he had advised a manager and written a statement for the same manager regar ding an EEO issue, appearing to take sides regarding the issue when he was expected to remain neutral in EEO investigations. It notes Complainant’s history of discipline, including a prior Letter of Reprimand for lack of candor and a prior Letter of Warni ng for similar misconduct as that in the instant Letter of Proposed Suspension, and references the Agency’s Table of Penalties in concluding that the proposed suspension was appropriate. Complainant submitted a memorandum dated November 17, 2016 in response to the Letter of Proposed Suspension. It indicates that, regarding the charge of negligent performance of duties, Complainant denied any negligent intent to ensure the confidentiality of the complainant’s information and explained that he connected to t he networked computer because of its proximity to his office and there were problems with the printer’s functioning; he also denied sharing a complainant’s witness information as alleged. Regarding the charge of conduct unbecoming of an EEO Specialist, he denied the allegation that he was unprofessional, accusatory, and accusatory, and that he badgered the witness and banged on the table, noting that there was not a table in the room; he also named witnesses and alleged the manager lied about how she obtai ned the witness names. Regarding the charge of engaging in conduct that creates a conflict of interest with official duties, he claimed no recollection of making the statement as alleged. A memorandum from Complainant’s second- line supervisor (Supervisor2) dated January 19, 2017 indicates that, regarding the charge of negligent performance of duties, Agency records show that Complainant completed training on personally identifiable information (PII) and cyber awareness and, therefore, Supervisor2 believes C omplainant knew or should have known that leaving the sensitive information on a printer outside the EEO office was inappropriate. It also indicates that Supervisor2 approached an employee that Complainant had indicated could verify that he did not provide witness names and the employee was unable to do so. Regarding the charge of conduct unbecoming an EEO Specialist, it indicates that, while witnesses confirmed that Complainant was Complainant was loud and contentious, they indicated that he hit the notebook rather than hitting the table with his notebook as alleged. Complainant submitted a letter dated January 29, 2017 generally continuing to deny the allegations and including letters of reference in support of his character and professionalism. A Mar ch 13, 2017 Notice of Decision – 7 Day Suspension indicates that Complainant was found to have committed the offenses as charged in the November 10, 2016 proposal. Complainant attested that he believed the suspension was not justified . He acknowledged tha t the first charge was true and accurate but denied the remaining allegations. Complainant’s first- line Supervisor (Supervisor1) attested that she proposed the suspension with Labor Relation’s guidance, but she was not involved in the final decision. Complainant’s second -line Supervisor (Supervisor2) attested that he made the ultimate decision in the suspension action at issue. He attested that he made the decision to issue the suspension because Complainant’s conduct was serious in nature and he had pri or disciplinary actions for somewhat similar conduct. He attested that he felt the action was in line with progressive discipline, as Complainant had a prior Letter of Reprimand. He attested that he reduced the suspension from 14 to 7 days because he beli eved the 7- day suspension would be sufficient to help Complainant become aware of his continued issues with processes used in the EEO office and to correct the behavior. A Human Resources Specialist (HR) attested that Supervisor2 contacted her to provide supporting evidence and to request assistance with preparing a letter relative to Complainant’s misconduct. She attested that the 7 -day suspension complies with the Agency’s Table of Penalties and it was consistent with actions taken against other employee s who committed the same misconduct. Complainant’s Team Lead (Team Lead) attested that, while she had no direct, first -hand knowledge of the events at issue, she believed Supervisor1 and Supervisor2 harassed Complainant , but she did not believe Complainant’ s race, age, protected EEO activity, and/or medical condition impacted the way management treated Complainant. She attested that she felt Supervisor2 felt threatened by Complainant because he had a lot of experience and Complainant’s sex im pacted the decis ion. She attested that, when she first arrived, the males were harassed more than the females. Complainant’s co- worker (CW1) attested t hat Supervisor1 and Supervisor2 always appeared to be cordial to Complainant and she has no reason to believe he was t reated differently based on his race, sex, age, medical condition, or prior EEO activity. CW1 attested to some of the underlying events leading to Complaina nt’s suspension. She attested that, on September 20, 2016, she assigned Complainant a complaint for processing and, on October 5, 2016, Complainant informed her that the complainant was complaining that her supervisor had contacted her witnesses and now th ose witnesses were reluctant to speak with EEO. She attested that the supervisor told her that Com plainant had provided her the witness list. CW1 attested that she reported the incident to Supervisor1 and Supervi sor2. She attested that, at one point during an interview, Complainant was asking questions in a hard and stern tone that was sort of badgerin g; he got upset , raised his voice , and banged on his notebook; he argued with the supervisor and asked questions that were not relevant, including previous EEO complaints filed against the supervisor . A February 17, 2016 Notice of Proposed Reprimand indic ates that Complainant was charged with lack of candor in connection with an instance of sending correspondence to a complainant indicating that a final interview had been conducted when it had not been conducted. An April 27, 2016 Notice of Decision – Repr imand indicates that the charge was sustained for the reason s set forth in the proposal. Regarding Complainant’s other allegations, Supervisor2 attested that Complainant had not reported feeling that he was being discriminated against or subjected to ongoin g harassment. Regarding claim (5), Supervisor2 atte sted that Complainant was the custodian of the witness list and it was compromised when a manager involved At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to reques t a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a fi nal decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that his complaint should be remanded to the Agency, noting that the persons bei ng charged with the actions at issue remained in control of the investigation and the final agency decision, creating a conflict of interest . He reiterates his claim as involving race, sex, disability, har assment and reprisal. He also argues that there are no disputes of material fact as to the Agency’s misconduct and asks that we find in his favor. In response, the Agency indicates that the only issue on appeal is that involving the 7- day suspension. In so doing, the Agency note s that the record shows that, during the initial conference with the AJ and prior to the dismissal of the request for hearing, Complai nant did not raise any objections to the dismissed claims or seek to amend his complaint. The Ag ency argues that the dismissed claims were properly dismissed , that Complainant failed to establish a prima facie case of discrimination, it has presented legitimate nondiscriminatory reasons for its actions, and Complainant has f ailed to establish that th e Agency’s actions were pr etext. The Agency also argues that Complainant failed to present a prima facie case of harassment . Regarding Complainant’s allegations of a conflict of interest, the Agency argues that this is not properly before the Commission, as Complainant did not rai se the issue prior to appeal ; the Agency also argues that, even if they are properly before the Commission, they are so vague and lacking in terms of substance, evidence, and analysis, that the Agency is unable to respond to them. The Agency asks that we affirm its final decision. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record with out regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on t he Commission’s own assessment of the record and its interpretation of the law”). Agency’s Investigation and Processing of the Complaint 29 C.F.R. § 1614.108(b) states, in pertinent part, that the agency shall devel op an impartial and appropriate factual record upon which to make findings on the claims raised by a complainant and defines an appropriate fac tual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred . The Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD - 110), Chapter 1 , provides that agencies must avoid conflicts of position or conflicts of interest, as well as the appearance of such conflicts. For example, the same agency official(s) responsible for executing and advising on personnel actions may not also be responsible for managing, advising, or overseeing the EEO pre -complaint and complaint process. EEO MD -110 Chapter 1 also provides that when an employee files a compl aint alleging discrimination by the EEO Director or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO offic e. Th is matter must be addressed through procedures designed to safeguard the integrity of the EEO complaint process. For exampl e, when an EEO complaint alleges that the EEO Director or a member of his/her immediate staff discriminated, the EEO Director sh all recuse himself/herself and retain a third party to conduct the counseling, and investigation and draft the final agency deci sion for the agency head to issue. On appeal , Complainant argues that the Agency’s report of investigation (ROI) is not a n impartial and appropriate record and that there are conflicts of interests associated with the Agency’s processing of the complaint , as he is an e mployee of the Agency’s Office of EEO and Diversity and the responsible management officials are managers or sup ervisor s in that Office . Complainant named the following employees of the Agency’s DLA Aviation Office of EEO and Diversity in Richmond, Virginia as responsible management officials in the instant complaint: Equal Employment Manager, Legal Counsel, Chi ef of C omplaints, the Complai nts Manager, and the former Disability Program Manager. The EEO Counselor’s report indicates that the EEO Director located at Headquarters assigned the complaint to DLA Troop Support’s EEO Office in Philadelphia, Pennsylvania t o be pr ocessed. The record in dicates that the DLA Troop Support’s EEO Office process ed the complaint, including conducting the investigation and preparing the ROI. The final decision was issued by DLA Headquarters Office of EEO and Diversity. T hus, the record est ablishes that neither the EEO Director nor a member of his/her immediate staff was involved in the pre -complaint or complaint processing. We find the Agency’s actions were sufficient to protect the integrity of the process. For these reasons, we find there was no conflict of interest in the investigation and processing of the complaint. However, as will be discussed below, the record shows that the investigation was limited to claim (1) as a disparate treatment claim and failed to address the overal l haras sment claim. Dismiss ed Claims 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 ma tter al leged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of the effective date of the action. Here, the Agency dismissed claims (2) through (8) for untimely EEO Counselor contact. In his formal complaint, Compl ainant alleged claim ( 6) occurred April 27, 2016; claim ( 7) occurred on or around August 1, 2013; claim ( 8) occurred on or around September 25, 2013. Although Complainant failed to identify the dates of claims (2) and (5), the record shows that these event s occur red in February and October 2016, respectively. Regarding claim (3), the record shows that Complainant indicated in his formal complaint that the alleged acts occurred when he was initially hired, which was in January 2012. The record also shows tha t Compl ainant initially contacted an EEO Counselor on May 11, 2017, which is beyond the 45- day time limit for claims (2), (3), (5), (6), (7), and (8). Therefore, we find dismissal of claims (2), (3), (5), (6), (7), and (8) on this basis was warranted . Com plainan t did not specify a date when claim (4) occurred. However, the Agency also dismissed th is claim for failure to state a claim. Claim (4) alleges that the EEO Manager retaliated against Complainant because he refused to assist the EEO Manager’s wife i n prepa ring her resume. We find this fails to state a claim. Although this alleged action may be inappropriate, it does not allege that the EEO Manager was motivated by a protected status. Therefore, we find dismissal of this claim was warranted. Disparate Treat ment Claim A claim of disparate treatment is examined under the three -part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimina tion by presenting fa cts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco Constr. Corp. v. Wate rs, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine . 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant be ars the ult imate resp onsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502 (1993). In claim (1), Complainant alleged that the A gency tr eated him dis parately in issuing him a 7 -day suspension. Even if we assume that he established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non -discriminatory reasons for its actions. The Agency ex plained that Complainant was suspended for charges of negligent performance of duties, conduct unbecoming an EEO Specialist, and engaging in conduct that creates a conflict of interest with official duties, as discussed above. The Agen cy also exp lained that the suspension reflected the seriousness of the offenses , was in compliance with its policies of progressive discipline, and was consistent with actions taken against other employees who committed the same misconduct. Although Compla inant ha s alleged tha t the Agency acted discriminately, we find that the record does not establish by a preponderance of the evidence that the Agency acted on the basis of Complainant’s race, sex, disability, age, or prior EEO activity. Therefore, we find that he has failed to establish a claim of disparate treatment. CONCLUSION Based on a thorough review of the record and the c ontentions on appeal, including those not specifically addressed herein, the Agency’s final decision is AFFIRMED . 3 To the extent that the suspension is also offered as a claim of harassment , it is precluded based on our finding that Complainant failed to establish that t he actions taken by the A gency were motivated by his protected bases. See Oakley v. U.S. Postal Se rvice , EEOC Appeal No. 01982923 (Sept. 21, 2000). STATEMENT O F RIGHTS - ON APPEAL RECONSIDER ATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellat e decisi on involved a clearly e rroneous 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 for reconsideration must be filed with EEOC’s O ffice of Federal Operations (OF O) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Manage ment Dir ective for 29 C.F.R . Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employme nt Oppor tunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be d eemed ti mely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Por tal (Fed SEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30 -day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documenta tion mus t be submitted tog ether with the 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 ACTIO N (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 name as the defendant in the compla int 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 “de partment” means the national organiz ation , 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 comp laint . 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 withou t paying these fees or costs. Similarly, if you cannot afford an attorney to repr esent yo u 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 d irectly to the court, not the Commission. The court has the sole discretion to gr ant 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 July 28, 2021 Date	[ "Oakley v. U.S. Postal Se rvice , EEOC Appeal No. 01982923 (Sept. 21, 2000)", "411 U.S. 792", "438 U.S. 567", "450 U.S. 248", "509 U.S. 502", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.108(b)", "29 C.F.R. § 1614.1...	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99	https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2021003902.pdf	2021003902.pdf	PDF	application/pdf	20,613	Charlie K .,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency.	June 28, 2021	Appeal Number: 2021003902 Background: At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity Investigator, GS -1860- 12, at the Agency’s Denver Field Office in Denver, Colorado. On April 27, 2019, Complainant contacted the Agency’s EEO Director at the time (EEO Director) via email to voice concern regarding her decision to not fu lly accept all his claims in Agency No. 2018- 0053, which he had previously filed. See Report of Investigation (ROI) at 14, 28- 30, and 245. Complainant’s email included copies to numerous Members of Congress. Id. Approximately two days after Complainant sent his email to the EEO Director, the EEO Director emailed Complainant her response. Id. at 28. Notably, in responding to Complainant ’s email , the EEO Director “replied all” to ensure that the Members of Congress whom Complainant had contacte d for assistance were aware that the Agency was acting diligently to address Complainant’s concerns. Id. at 246 and 249. Complainant, however, felt that the EEO Director violated his right to confidential ity and he emphasized that the EEO Director’s action was part and parcel of a series of procedural irregularities spanning several previously filed EEO complaints . Id. at 57-64. On September 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic/Latino), national origin (Mexican), sex (male), color (brown), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973, when on April 29, 2019, the EEO Director disclosed and distributed confidential detailed data to third parties and the public, relating to Complainant’s prior EEO activity . At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an independent contract Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. 4 Complainant’s formal complaint included three additional claims. Two of these claims concerned the manner in which the Agency processed Agency No. 2018- 0053. The third claim concerned a matter that was pending before the Commission in a separate EEO appeal. As Complainant has not challenged the Agency’s decision to dismiss these claims, the Commission will not discuss them further. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9, § IV.A.3 (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the i ssues specifically raised on appeal.” ). On March 17, 2021, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) , which concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In finding no discrimination, the Agency first considered whether Complainant could establish a prima facie case of discrimination bas ed on disparate treatment. Having reviewed the record, the Agency found that Complainant could not make such a showing because “he did not prove he suffered any adverse action” or show that similarly situated employees outside of his protected classes were treated more favorably than him. See Final Decision at 13. The Agency further found that even assuming arguendo that Complainant could establish a prima facie case of discrimination, the EEO Director had legitimate, nondiscriminatory reasons for replying all to Complainant’s email, namely to “negate any suggestion by Complainant to his proscribed list of recipients, that she had failed to respond to Complainant’s assertions.” Id. at 14 -15. While the Agency considered Complainant’s contention that evidence of pretext could be seen in the irregular manner in which the Agency handled his EEO complaint s, the Agency ultimately found that such evidence was insufficient to demonstrate pretext based on discriminatory animus. Id. As for Complainant’s allegation of harassment, the Agency found that the alleged single incident of harassment was insufficient ly severe or pervasive to constit ute a hostile work environment. Id. at 15 -17. Based on the foregoing, the Agency concluded that Complainant could not prevail on his complaint. This appeal followed. CONTENTIONS ON APPEAL The Commission discuss es below Complainant’s contentions on appe al. The Agency opposes the appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’ s decision is subject to de no vo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap . 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Legal Analysis: the Commission AFFIRMS the final decision. 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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission’s adjudicatory function is separate and independent from those offices charged with in -house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party in this action. The Chair has abstained from participation in this matter. 3 On appeal, Complainant claims that he received the Agency’s final decision on May 29, 2021. See Complainant’s Notice of Appeal/Petition . As the Agency’s brief in opposition to Complainant’s appeal only addresses the merits of the complaint, the Commission need not determine whether Complainant’s appeal is timely. See Agency Brief in Opposition to Appeal . ISSUE PRESENTED The issue presented is whether the Agency properly determined that disclosure of Complainant’s name and other information in a “reply al l” response to an email initiated by Complainant did not constitute harassment based on reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity Investigator, GS -1860- 12, at the Agency’s Denver Field Office in Denver, Colorado. On April 27, 2019, Complainant contacted the Agency’s EEO Director at the time (EEO Director) via email to voice concern regarding her decision to not fu lly accept all his claims in Agency No. 2018- 0053, which he had previously filed. See Report of Investigation (ROI) at 14, 28- 30, and 245. Complainant’s email included copies to numerous Members of Congress. Id. Approximately two days after Complainant sent his email to the EEO Director, the EEO Director emailed Complainant her response. Id. at 28. Notably, in responding to Complainant ’s email , the EEO Director “replied all” to ensure that the Members of Congress whom Complainant had contacte d for assistance were aware that the Agency was acting diligently to address Complainant’s concerns. Id. at 246 and 249. Complainant, however, felt that the EEO Director violated his right to confidential ity and he emphasized that the EEO Director’s action was part and parcel of a series of procedural irregularities spanning several previously filed EEO complaints . Id. at 57-64. On September 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic/Latino), national origin (Mexican), sex (male), color (brown), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973, when on April 29, 2019, the EEO Director disclosed and distributed confidential detailed data to third parties and the public, relating to Complainant’s prior EEO activity . At the	Charlie K .,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2021003902 Agency No. 2019- 0059 DECISION On June 28, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 17, 2021,3 final decision (final decision) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VI I of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as a mended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the final decision. 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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission’s adjudicatory function is separate and independent from those offices charged with in -house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party in this action. The Chair has abstained from participation in this matter. 3 On appeal, Complainant claims that he received the Agency’s final decision on May 29, 2021. See Complainant’s Notice of Appeal/Petition . As the Agency’s brief in opposition to Complainant’s appeal only addresses the merits of the complaint, the Commission need not determine whether Complainant’s appeal is timely. See Agency Brief in Opposition to Appeal . ISSUE PRESENTED The issue presented is whether the Agency properly determined that disclosure of Complainant’s name and other information in a “reply al l” response to an email initiated by Complainant did not constitute harassment based on reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity Investigator, GS -1860- 12, at the Agency’s Denver Field Office in Denver, Colorado. On April 27, 2019, Complainant contacted the Agency’s EEO Director at the time (EEO Director) via email to voice concern regarding her decision to not fu lly accept all his claims in Agency No. 2018- 0053, which he had previously filed. See Report of Investigation (ROI) at 14, 28- 30, and 245. Complainant’s email included copies to numerous Members of Congress. Id. Approximately two days after Complainant sent his email to the EEO Director, the EEO Director emailed Complainant her response. Id. at 28. Notably, in responding to Complainant ’s email , the EEO Director “replied all” to ensure that the Members of Congress whom Complainant had contacte d for assistance were aware that the Agency was acting diligently to address Complainant’s concerns. Id. at 246 and 249. Complainant, however, felt that the EEO Director violated his right to confidential ity and he emphasized that the EEO Director’s action was part and parcel of a series of procedural irregularities spanning several previously filed EEO complaints . Id. at 57-64. On September 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic/Latino), national origin (Mexican), sex (male), color (brown), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973, when on April 29, 2019, the EEO Director disclosed and distributed confidential detailed data to third parties and the public, relating to Complainant’s prior EEO activity . At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an independent contract Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. 4 Complainant’s formal complaint included three additional claims. Two of these claims concerned the manner in which the Agency processed Agency No. 2018- 0053. The third claim concerned a matter that was pending before the Commission in a separate EEO appeal. As Complainant has not challenged the Agency’s decision to dismiss these claims, the Commission will not discuss them further. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9, § IV.A.3 (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the i ssues specifically raised on appeal.” ). On March 17, 2021, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) , which concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In finding no discrimination, the Agency first considered whether Complainant could establish a prima facie case of discrimination bas ed on disparate treatment. Having reviewed the record, the Agency found that Complainant could not make such a showing because “he did not prove he suffered any adverse action” or show that similarly situated employees outside of his protected classes were treated more favorably than him. See Final Decision at 13. The Agency further found that even assuming arguendo that Complainant could establish a prima facie case of discrimination, the EEO Director had legitimate, nondiscriminatory reasons for replying all to Complainant’s email, namely to “negate any suggestion by Complainant to his proscribed list of recipients, that she had failed to respond to Complainant’s assertions.” Id. at 14 -15. While the Agency considered Complainant’s contention that evidence of pretext could be seen in the irregular manner in which the Agency handled his EEO complaint s, the Agency ultimately found that such evidence was insufficient to demonstrate pretext based on discriminatory animus. Id. As for Complainant’s allegation of harassment, the Agency found that the alleged single incident of harassment was insufficient ly severe or pervasive to constit ute a hostile work environment. Id. at 15 -17. Based on the foregoing, the Agency concluded that Complainant could not prevail on his complaint. This appeal followed. CONTENTIONS ON APPEAL The Commission discuss es below Complainant’s contentions on appe al. The Agency opposes the appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’ s decision is subject to de no vo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap . 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS On appeal, Complainant express es his disagreement with the final decision because the Agency “continues to subjec t [him] to a disturbing pattern of procedural irregularities resulting in discrimination and retaliation due to” his protected classes. See Complainant’s Brief at 1. The Commission is also mindful of Complainant’s contention that the EEO Director’s email w as part and parcel of a series of procedural irregularities resulting in discrimination. However, the sole issue before us is the EEO Director’s email. Consequently, the analysis below is limited to this claim alone. Complainant also emphasizes that due to his fear of retaliation “[he] never signed the required Privacy Act release forms required by Congress nor did those Congress Members named in the email forward any such form to [him] or the [Agency] .” Id. at 3-4. Complainant asserts that the Agenc y violated the Privacy Act by not obtaining his written consent before disclosing his protected EEO activity to third parties, such as Congressional Offices. Furthermore, Complainant takes umbrage at the EEO Director’s “reply all” explanation, as he believ es that this defense “would eliminate the need for any [Agency] employee or government official receiving an email to read the names of all the recipients and/or consider the content of their response” and could be used carte blanche to disclose confidenti al or top secret information. Id. at 4. For these reasons, Complainant requests that the Commission reverse the final decision and enter judgment in his favor. The analysis begin s with Complainant’s allegation of harassment.5 For Complainant to prevail, he must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected cl ass; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an inti midating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, the incidents must have been “suff iciently severe or pervasive to alter the conditions of [ Complainant ’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim ’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc. , EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Having reviewed the record, the Commission finds that probative evidence fails to demonstrate that the alleged discriminatory act occurred because of Complainant’s national origin, race, color, sex, or disability . A review of the record shows that Complainant, in his email to the EEO Director, copied Members of Congress . To ensure that these Members of Congress were aware that the Agency was acting diligently to address Complainant’s concerns, the EEO Director “replied all” to Complainant’s email. Ultimately, the Commission cannot see how the EEO Director’s action amounted to unlawful harassment , as she address ed Complainant’s concerns and demonstrate d diligence to the Members of Congress who m Complainant had 5 The Commission notes that the Agency initially analyzed Complainant’s allegation under the legal standard for disparate treatment. Having reviewed the record, the claim should be analyzed instead under the legal standard for harassment. contacted for assistance. The Commission is certainly mindful that Complai nant takes umbrage at the EEO Director’s “reply all” response and defense. However, as Complainant cannot show that the alleged action occurred because of his national origin, race, color, sex, or disability , he has not established that he experienced unlawful discrimination on those bases. The Commission’s analysis does not end there. Where complainant s allege harassment based on reprisal for protected EEO activity, they must show that the underlying conduct was sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White , 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues , EEOC Notice No. 015.004, § II(B)(3) & n . 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal -based harassment present itself. See also Janeen S. v. Dep’t of Commerce, E EOC Appeal No. 0120160024 (Dec. 20, 2017). Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti -retaliation provisions, the Commission has historically found a broad range of actions to be retaliatory by their very nature . For example, the Commission has held that a supervisor threatening an employee by saying, “What goes around, comes around” when discussing an EEO complaint constitute s reprisal. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den., EEOC Request No. 0520090654 (Dec. 16, 2010). The Commission also has held that the disclosure of an employee’s EEO activity constitutes reprisal. See Complainant v. Dep't of Justice , EEOC Appeal No. 0120132430 (July 9, 2015) (reprisal found where a supervisor broadcasted complainant’s EEO activity in the presence of coworkers and management); see also Melod ee M. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180064 (June 14, 2019) (affirming agency’s finding of reprisal when complainant’s second level supervisor disclosed complainant’s EEO activity to others). Finally, the Commission notes that even a single incident of unlawful disclosure of an employee’s protected EEO activity can constitu te reprisal. See Melodee M., supra. The question before us is whether the EEO Director’s action would dissuade a “reasonable person” from making or supporting a charge of discrimination. Having reviewed the record, the Commission concludes that the EEO Director’s action would not have a chilling effect on the willingness of reasonable employees to raise complaints through the EEO process nor would be reasonably lik ely to deter Complainant or others . After all, it was Complainant who initially sent the email to the EEO Director regarding the Agency’s processing of his prior EEO complaint and it was Complainant who i ncluded the Members of Congress on that email. The record shows that the EEO Director merely responded to all individuals made aware of Complainant’s concerns based on his own initial email. Consequently, Complainant cannot prevail here. Complainant claimed that the EEO Director violated the Privacy Act when she replied all to his email including all the individuals Complainant initially contacted in his own email. But the Commission has no jurisdiction over violations of the Privacy Act. T he Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the U.S. district courts. See Shondra S. v. Dep’t of Veterans Affairs , EEOC Ap peal No 2021003035 (July 12, 2021), citing Bucci v. Dep’t of Educ., EEOC Request Nos. 05890289, 05890291 (Apr. 12, 1989). As such , the EEO complaint process is not the proper forum to raise an allegation of a Privacy Act violation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRM S the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thir ty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty (20) calendar days from receipt of another party’s request for reconsideration within 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 M D-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file wi thin the 30- day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the requ est 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 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 wan t 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 the se 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: /s/Shelley E. Kahn ______________________________ Rachel See’s Shelley E. Kahn Acting Executive Officer Executive Secretariat Decem ber 14, 2021 __________________ Date	[ "Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009)", "Complainant v. Dep't of Justice , EEOC Appeal No. 0120132430 (July 9, 2015)", "682 F.2d 897", "510 U.S. 17", "548 U.S. 53", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.110(b)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.4...	[ -0.10935959219932556, 0.07991484552621841, -0.010453948751091957, 0.052987828850746155, -0.023732811212539673, 0.09272639453411102, 0.046823326498270035, -0.03838080167770386, -0.007953064516186714, 0.00641331821680069, 0.037970662117004395, -0.007155915722250938, 0.0003570576081983745, -0...

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