Split (1)

train · 20k rows

id int64 0 5k	url stringlengths 74 146	filename stringlengths 11 84	file_type stringclasses 2 values	content_type stringclasses 2 values	char_count int64 1.2k 1.5M	case_caption stringlengths 0 13.2k	date stringlengths 0 19	legal_analysis_summary stringlengths 16 262k	full_text stringlengths 1.12k 457k	case_citations listlengths 0 76	embedding listlengths 384 384
100	https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021003902.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...
101	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985794.r.txt	01985794.r.txt	TXT	text/plain	14,662		July 17, 1998	Appeal Number: 01985794 Case Facts: On July 17, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by him on June 21, 1998, pertaining to 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. , 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> In his complaint, complainant alleged that he was subjected to discrimination on the bases of age (DOB 2/10/44), physical disability (HIV positive), and in reprisal for prior EEO activity when: Complainant received his Level III Performance Appraisal Rating (PARS) of November 17, 1997; and Complainant was subjected to acts of a hostile work environment from 1994 through 1997. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the agency noted that the last incident of alleged discrimination occurred on November 17, 1997, and complainant did not contact an EEO Counselor until January 22, 1998, twenty days beyond the applicable forty-five day time limit. In the March 21, 1998 counselor's report, the EEO Counselor noted that complainant stated that he contacted the former Deputy EEO Officer on November 17, 1997, and expressed a desire to file a complaint. In its decision, however, the agency found that there was insufficient evidence to support complainant's assertion that he contacted the former Deputy EEO Officer (retired) to initiate the EEO complaint process. Specifically, the agency claimed that according to the former Deputy EEO Officer's caseload status report, complainant's name is not listed as having requested informal complaint counseling or having a claim pending at that time.<2> Furthermore, the agency stated that as a result of a December 22, 1997 e-mail message, complainant was aware of the person to contact to initiate the EEO process. Thus, the agency found complainant's January 22, 1998 contact with the EEO Counselor to be beyond the forty-five-day time limit for timely counselor contact. The agency dismissed the other matters in complainant's complaint on the grounds that they were not like or related to the PARS issue, and on the grounds of untimely EEO Counselor contact. The record contains an e-mail message dated December 22, 1997, which advised agency personnel to contact the Concord EEO Counselor in order to initiate an EEO complaint. The record also contains a June 17, 1998 e-mail message from complainant to the Concord EEO Counselor, in which complainant admits that he received the December 22, 1997 e-mail message regarding EEO counselor contact. Also included in the June 17, 1998 e-mail message is a statement by complainant that he contacted the previous Deputy EEO Officer on November 17, 1997, to complain about his PARS rating and indicated that he wanted to file 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 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. With regard to complainant's contention that he initiated contact with the former Deputy EEO Director on November 17, 1998, 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 his EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the former Deputy EEO Director, a person who can be considered logically connected to the EEO process in order to complain of his PARS rating. We note, however, that there is no evidence of record whether complainant raised allegations of discrimination with the former Deputy EEO Director, i.e., exhibited an intent to pursue his EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision regarding claim (1) and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. With regard to the agency's dismissal of the remainder of the issues in complainant's complaint on the grounds that they were not like or related to the PARS issue, we find that the agency erred in its decision. The record reveals that in his formal complaint, complainant stated that he was subjected to continuing acts of hostile work environment harassment from 1994 through 1997. Attached to his formal complaint, complainant listed a series of alleged incidents of hostile work environment harassment starting in March 1995 and concluding with the November 17, 1997 performance appraisal. In order to avoid fragmentation of complainant's complaint, we find that the specific incidents of harassment listed in his formal complaint should be viewed as one claim of hostile work environment harassment. Thus, we find that the various acts stated in issue (2) are like or related to the PARS issue, since they are all incidents of alleged hostile work environment harassment. Final Decision: Accordingly, the agency's decision to dismiss the complaint was improper and is hereby REVERSED.	Vernon Clevenger, ) Complainant, ) ) v. ) Appeal No. 01985794 Richard J. Danzig, ) Agency No. 98-60701-009 Secretary, ) Department of the Navy, ) Agency. ) ____________________________________) DECISION On July 17, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by him on June 21, 1998, pertaining to 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. , 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> In his complaint, complainant alleged that he was subjected to discrimination on the bases of age (DOB 2/10/44), physical disability (HIV positive), and in reprisal for prior EEO activity when: Complainant received his Level III Performance Appraisal Rating (PARS) of November 17, 1997; and Complainant was subjected to acts of a hostile work environment from 1994 through 1997. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the agency noted that the last incident of alleged discrimination occurred on November 17, 1997, and complainant did not contact an EEO Counselor until January 22, 1998, twenty days beyond the applicable forty-five day time limit. In the March 21, 1998 counselor's report, the EEO Counselor noted that complainant stated that he contacted the former Deputy EEO Officer on November 17, 1997, and expressed a desire to file a complaint. In its decision, however, the agency found that there was insufficient evidence to support complainant's assertion that he contacted the former Deputy EEO Officer (retired) to initiate the EEO complaint process. Specifically, the agency claimed that according to the former Deputy EEO Officer's caseload status report, complainant's name is not listed as having requested informal complaint counseling or having a claim pending at that time.<2> Furthermore, the agency stated that as a result of a December 22, 1997 e-mail message, complainant was aware of the person to contact to initiate the EEO process. Thus, the agency found complainant's January 22, 1998 contact with the EEO Counselor to be beyond the forty-five-day time limit for timely counselor contact. The agency dismissed the other matters in complainant's complaint on the grounds that they were not like or related to the PARS issue, and on the grounds of untimely EEO Counselor contact. The record contains an e-mail message dated December 22, 1997, which advised agency personnel to contact the Concord EEO Counselor in order to initiate an EEO complaint. The record also contains a June 17, 1998 e-mail message from complainant to the Concord EEO Counselor, in which complainant admits that he received the December 22, 1997 e-mail message regarding EEO counselor contact. Also included in the June 17, 1998 e-mail message is a statement by complainant that he contacted the previous Deputy EEO Officer on November 17, 1997, to complain about his PARS rating and indicated that he wanted to file 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 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. With regard to complainant's contention that he initiated contact with the former Deputy EEO Director on November 17, 1998, 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 his EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the former Deputy EEO Director, a person who can be considered logically connected to the EEO process in order to complain of his PARS rating. We note, however, that there is no evidence of record whether complainant raised allegations of discrimination with the former Deputy EEO Director, i.e., exhibited an intent to pursue his EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision regarding claim (1) and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. With regard to the agency's dismissal of the remainder of the issues in complainant's complaint on the grounds that they were not like or related to the PARS issue, we find that the agency erred in its decision. The record reveals that in his formal complaint, complainant stated that he was subjected to continuing acts of hostile work environment harassment from 1994 through 1997. Attached to his formal complaint, complainant listed a series of alleged incidents of hostile work environment harassment starting in March 1995 and concluding with the November 17, 1997 performance appraisal. In order to avoid fragmentation of complainant's complaint, we find that the specific incidents of harassment listed in his formal complaint should be viewed as one claim of hostile work environment harassment. Thus, we find that the various acts stated in issue (2) are like or related to the PARS issue, since they are all incidents of alleged hostile work environment harassment. Accordingly, the agency's decision to dismiss the complaint was improper and is hereby REVERSED. The complaint is hereby REMANDED for processing in accordance with the Order below. ORDER The agency is ORDERED to take the following actions: Conduct a supplemental investigation regarding complainant's November 17, 1997 contact with the former Deputy EEO Director. The agency shall obtain a statement from the former Deputy EEO Director regarding the November 17, 1997 contact indicating whether complainant raised an allegation of discrimination and/or exhibited an intent to pursue his EEO rights; a statement from complainant regarding his contact with the former Deputy EEO Director indicating whether he raised an allegation of discrimination and/or exhibited an intent to pursue his EEO rights; and any other relevant evidence regarding the November 17, 1997 contact between complainant and the former Deputy EEO Director. 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: February 29, 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 Assistant1On 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. 2The record does not contain a statement from the former Deputy EEO Director nor does it contain a copy of his caseload status report for the relevant time period.	[ "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...	[ -0.09298022836446762, 0.08730065822601318, -0.014342828653752804, 0.006738686002790928, 0.023670630529522896, 0.10313809663057327, 0.03149053081870079, 0.07081736624240875, -0.08669373393058777, 0.0005239835008978844, 0.008107954636216164, 0.011952797882258892, 0.04606165364384651, 0.02057...
102	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983742.txt	01983742.txt	TXT	text/plain	11,759		August 4, 1999	Appeal Number: 01983742 Background: Appellant filed a formal complaint on August 23, 1995, alleging discrimination on the basis of national origin (Italian-American) when he was harassed (non-sexual) and terminated by his Section Chief on May 20, 1992. In its first final agency decision (FAD 1), dated September 12, 1996, the agency dismissed appellant's allegations for untimely EEO Counselor contact. Specifically, the agency stated that appellant did not contact an EEO Counselor until three years after the alleged incidents. The agency maintained that appellant had actual or constructive knowledge of his right to file an EEO complaint because: 1) as a supervisor, he received two policy memos regarding the EEO Program; and 2) the second memo, which specifically mentioned the time frames for filing EEO complaints, was posted on bulletin boards at the facility. Appellant timely filed an appeal of FAD 1 with the Commission. In response, the Commission issued a decision, dated December 16, 1997, vacating FAD 1 and remanding appellant's complaint. The Commission ordered the agency to supplement the record with evidence "which establishes that appellant had constructive knowledge of the EEO process" and of his right to file an EEO complaint. We noted, in our decision on the appeal of FAD 1, that in order to impute constructive knowledge to an appellant, an agency must submit specific evidence that a poster contained notice of the applicable time limits. See Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). We also stated that it was not apparent that appellant was a supervisor and therefore charged with the task of being familiar with the specifics of the EEO process. Furthermore, we noted that the agency presented no evidence that the second memo was ever posted, that it was ever distributed to employees, and that appellant ever received a copy of it. We found that statements to that effect in FAD 1 did not constitute evidence. In response, the agency issued a second final agency decision (FAD 2), dated March 31, 1998, in which it again concluded that appellant was untimely. The agency asserted that it based its conclusion on the fact that the record contained the following evidence: 1) "data from station officials indicating that, during [appellant's] VA employment, EEO policy, EEO Counselor, and EEO time frames information was posted on bulletin board's at [appellant's] facility"; 2) the fact that appellant specifically noted that he was a supervisor in a memo dated 12/12/85, as well as in two different professional resumes that were also in the record; 3) a memo dated 1/14/98, in which station officials stated that "EEO time frames and counselor data has been routinely posted on bulletin boards at the facility for the past ten years; 4) evidence that appellant was tasked with reviewing federal guidelines with residents; 5) evidence that under distribution plans B and D, appellant would have received hand delivered information about the time frames for filing EEO complaints. Based on this evidence, the agency concluded that appellant "had constructive knowledge, if not actual knowledge, of EEO time frames and EEO Complaint processing at the time of [his] termination in 1992." Legal Analysis: the Commission. In response, the Commission issued a decision, dated December 16, 1997, vacating FAD 1 and remanding appellant's complaint. The Commission ordered the agency to supplement the record with evidence "which establishes that appellant had constructive knowledge of the EEO process" and of his right to file an EEO complaint. We noted, in our decision on the appeal of FAD 1, that in order to impute constructive knowledge to an appellant, an agency must submit specific evidence that a poster contained notice of the applicable time limits. See Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). We also stated that it was not apparent that appellant was a supervisor and therefore charged with the task of being familiar with the specifics of the EEO process. Furthermore, we noted that the agency presented no evidence that the second memo was ever posted, that it was ever distributed to employees, and that appellant ever received a copy of it. We found that statements to that effect in FAD 1 did not constitute evidence. In response, the agency issued a second final agency decision (FAD 2), dated March 31, 1998, in which it again concluded that appellant was untimely. The agency asserted that it based its Final Decision: Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960.001, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint for untimely contact with an EEO Counselor. BACKGROUND Appellant filed a formal complaint on August 23, 1995, alleging discrimination on the basis of national origin (Italian-American) when he was harassed (non-sexual) and terminated by his Section Chief on May 20, 1992. In its first final agency decision (FAD 1), dated September 12, 1996, the agency dismissed appellant's allegations for untimely EEO Counselor contact. Specifically, the agency stated that appellant did not contact an EEO Counselor until three years after the alleged incidents. The agency maintained that appellant had actual or constructive knowledge of his right to file an EEO complaint because: 1) as a supervisor, he received two policy memos regarding the EEO Program; and 2) the second memo, which specifically mentioned the time frames for filing EEO complaints, was posted on bulletin boards at the facility. Appellant timely filed an appeal of FAD 1 with the Commission. In response, the Commission issued a decision, dated December 16, 1997, vacating FAD 1 and remanding appellant's complaint. The Commission ordered the agency to supplement the record with evidence "which establishes that appellant had constructive knowledge of the EEO process" and of his right to file an EEO complaint. We noted, in our decision on the appeal of FAD 1, that in order to impute constructive knowledge to an appellant, an agency must submit specific evidence that a poster contained notice of the applicable time limits. See Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). We also stated that it was not apparent that appellant was a supervisor and therefore charged with the task of being familiar with the specifics of the EEO process. Furthermore, we noted that the agency presented no evidence that the second memo was ever posted, that it was ever distributed to employees, and that appellant ever received a copy of it. We found that statements to that effect in FAD 1 did not constitute evidence. In response, the agency issued a second final agency decision (FAD 2), dated March 31, 1998, in which it again concluded that appellant was untimely. The agency asserted that it based its conclusion on the fact that the record contained the following evidence: 1) "data from station officials indicating that, during [appellant's] VA employment, EEO policy, EEO Counselor, and EEO time frames information was posted on bulletin board's at [appellant's] facility"; 2) the fact that appellant specifically noted that he was a supervisor in a memo dated 12/12/85, as well as in two different professional resumes that were also in the record; 3) a memo dated 1/14/98, in which station officials stated that "EEO time frames and counselor data has been routinely posted on bulletin boards at the facility for the past ten years; 4) evidence that appellant was tasked with reviewing federal guidelines with residents; 5) evidence that under distribution plans B and D, appellant would have received hand delivered information about the time frames for filing EEO complaints. Based on this evidence, the agency concluded that appellant "had constructive knowledge, if not actual knowledge, of EEO time frames and EEO Complaint processing at the time of [his] termination in 1992." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), which was the regulation in effect at the time of the alleged discrimination, required that complaints of discrimination be brought to the attention of an EEO Counselor within thirty (30) calendar days of the alleged discriminatory event; the effective date of an alleged discriminatory personnel action; or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.<1> The record, as presented to us after we ordered the agency to provide us with supplemental evidence, is now sufficient to demonstrate that appellant had constructive notice of the time frames. The record establishes that appellant was, in fact, a supervisor. It also shows that part of a supervisor's job is to understand and to implement EEO principles. We believe that a person with such responsibility as a supervisor should have known that there is a time limit for filing an EEO Complaint. Additionally, the record contains a memorandum from the EEO Manager explaining that the EEO Notice was located on a bulletin board in front of the main elevators, which is an area "highly visible to everyone." The EEO Manager asserted that the time limits for filing an EEO Complaint were included on the Notice, and that the EEO bulletin boards had been maintained, continuously with updates, since 1980. Due to the specificity about the EEO Notice in the EEO Manager's memorandum and the fact that appellant was a supervisor, the agency has provided evidence specific enough to support application of the constructive notice rule. See Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993); see also Godbey v. Secretary of Treasury, 01964650 (February 14, 1997)(citing Pride and finding that EEO Counselor's statements, which were not in affidavit form, were specific enough to prove the agency satisfied EEO posting requirements because they contained information about the time frames on the notice, as well as its location and when it was first posted); Shabazz v. United States Postal Service, 01971930 (March 20, 1998)(finding that a person who has worked for an agency for nearly fourteen years, and who had been promoted to a management level position, would know that there was a time limitation period for filing an EEO complaint). Therefore, appellant did not timely file his complaint. CONCLUSION Accordingly, the decision of the agency is AFFIRMED.	Gerit Mulder v. Department of Veterans Affairs 01983742 August 4, 1999 Gerit Mulder, ) Appellant, ) ) Appeal No. 01983742 v. ) ) Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs, ) Agency. ) ) DECISION INTRODUCTION Appellant filed an appeal with this Commission from a final agency decision 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. The final agency decision was dated March 31, 1998. The appeal was postmarked on April 17, 1998. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960.001, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint for untimely contact with an EEO Counselor. BACKGROUND Appellant filed a formal complaint on August 23, 1995, alleging discrimination on the basis of national origin (Italian-American) when he was harassed (non-sexual) and terminated by his Section Chief on May 20, 1992. In its first final agency decision (FAD 1), dated September 12, 1996, the agency dismissed appellant's allegations for untimely EEO Counselor contact. Specifically, the agency stated that appellant did not contact an EEO Counselor until three years after the alleged incidents. The agency maintained that appellant had actual or constructive knowledge of his right to file an EEO complaint because: 1) as a supervisor, he received two policy memos regarding the EEO Program; and 2) the second memo, which specifically mentioned the time frames for filing EEO complaints, was posted on bulletin boards at the facility. Appellant timely filed an appeal of FAD 1 with the Commission. In response, the Commission issued a decision, dated December 16, 1997, vacating FAD 1 and remanding appellant's complaint. The Commission ordered the agency to supplement the record with evidence "which establishes that appellant had constructive knowledge of the EEO process" and of his right to file an EEO complaint. We noted, in our decision on the appeal of FAD 1, that in order to impute constructive knowledge to an appellant, an agency must submit specific evidence that a poster contained notice of the applicable time limits. See Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). We also stated that it was not apparent that appellant was a supervisor and therefore charged with the task of being familiar with the specifics of the EEO process. Furthermore, we noted that the agency presented no evidence that the second memo was ever posted, that it was ever distributed to employees, and that appellant ever received a copy of it. We found that statements to that effect in FAD 1 did not constitute evidence. In response, the agency issued a second final agency decision (FAD 2), dated March 31, 1998, in which it again concluded that appellant was untimely. The agency asserted that it based its conclusion on the fact that the record contained the following evidence: 1) "data from station officials indicating that, during [appellant's] VA employment, EEO policy, EEO Counselor, and EEO time frames information was posted on bulletin board's at [appellant's] facility"; 2) the fact that appellant specifically noted that he was a supervisor in a memo dated 12/12/85, as well as in two different professional resumes that were also in the record; 3) a memo dated 1/14/98, in which station officials stated that "EEO time frames and counselor data has been routinely posted on bulletin boards at the facility for the past ten years; 4) evidence that appellant was tasked with reviewing federal guidelines with residents; 5) evidence that under distribution plans B and D, appellant would have received hand delivered information about the time frames for filing EEO complaints. Based on this evidence, the agency concluded that appellant "had constructive knowledge, if not actual knowledge, of EEO time frames and EEO Complaint processing at the time of [his] termination in 1992." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1613.214(a)(1)(i), which was the regulation in effect at the time of the alleged discrimination, required that complaints of discrimination be brought to the attention of an EEO Counselor within thirty (30) calendar days of the alleged discriminatory event; the effective date of an alleged discriminatory personnel action; or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.<1> The record, as presented to us after we ordered the agency to provide us with supplemental evidence, is now sufficient to demonstrate that appellant had constructive notice of the time frames. The record establishes that appellant was, in fact, a supervisor. It also shows that part of a supervisor's job is to understand and to implement EEO principles. We believe that a person with such responsibility as a supervisor should have known that there is a time limit for filing an EEO Complaint. Additionally, the record contains a memorandum from the EEO Manager explaining that the EEO Notice was located on a bulletin board in front of the main elevators, which is an area "highly visible to everyone." The EEO Manager asserted that the time limits for filing an EEO Complaint were included on the Notice, and that the EEO bulletin boards had been maintained, continuously with updates, since 1980. Due to the specificity about the EEO Notice in the EEO Manager's memorandum and the fact that appellant was a supervisor, the agency has provided evidence specific enough to support application of the constructive notice rule. See Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993); see also Godbey v. Secretary of Treasury, 01964650 (February 14, 1997)(citing Pride and finding that EEO Counselor's statements, which were not in affidavit form, were specific enough to prove the agency satisfied EEO posting requirements because they contained information about the time frames on the notice, as well as its location and when it was first posted); Shabazz v. United States Postal Service, 01971930 (March 20, 1998)(finding that a person who has worked for an agency for nearly fourteen years, and who had been promoted to a management level position, would know that there was a time limitation period for filing an EEO complaint). Therefore, appellant did not timely file his complaint. CONCLUSION Accordingly, the decision of the agency 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. 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: Aug. 4, 1999 ______________ ___________________________________ Date Carlton M. Hadden, Acting Director Office of Federal Operations 1 The regulations at 29 C.F.R. Part 1614 became effective on October 29, 1992. Under these regulations, complaints of discrimination have to be brought to the attention of the EEO Counselor within forty-five (45) days of the date the matter alleged to be discriminatory or, in case of a personnel action, within forty-five days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1).	[ "Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)", "Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993)", "29 C.F.R. § 1614.105(a)" ]	[ -0.08158931136131287, 0.11997780203819275, 0.022876176983118057, -0.0747741311788559, 0.08323947340250015, 0.02873224951326847, 0.046584729105234146, 0.07393904775381088, 0.029457366093993187, 0.02836238034069538, 0.044561754912137985, -0.018632009625434875, -0.018431467935442924, 0.049466...
103	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A04519_r.txt	01A04519_r.txt	TXT	text/plain	11,792	Barbara L. Boyle v. United States Postal Service 01A04519 August 3, 2001 . Barbara L. Boyle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	August 3, 2001	Appeal Number: 01A04519 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 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)). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that complainant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. Complainant claimed that she was discriminated against when on April 18, 1998, she was denied a light duty assignment. In effect, complainant claims that she was denied a reasonable accommodation of her disability. The Commission has held that a failure to accommodate may constitute a recurring violation, that is, a violation that recurs anew each day that an employer fails to provide an accommodation. See Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994). Here, the agency's alleged violation recurred each day that the agency failed to provide complainant with a reasonable accommodation. However, it is unclear from the record whether complainant eventually received a light duty assignment, and whether she received the assignment more than 45 days before she contacted an EEO Counselor. We note that complainant's request for back pay covers one year and eight days whereas complainant did not contact an EEO Counselor until January 25, 2000, approximately one year and nine months after the alleged discrimination occurred. Complainant did not initiate contact with an EEO Counselor until January 25, 2000. However, we note that the record contains a statement from complainant wherein she claimed that she was unaware that she could utilize the EEO process until January 20, 2000. The affidavit submitted by the Manager of Processing and Distribution states that an EEO poster setting forth the 45-day limitation period for contacting an EEO Counselor was posted on the workroom floor at complainant's work facility. However, the affidavit does not state that the EEO poster was posted at the time that the alleged discrimination occurred. Therefore, we find that a supplemental investigation is necessary in order to determine whether complainant had constructive notice of the proper time period for contacting an EEO Counselor, and whether and when complainant received a light duty assignment after the alleged discrimination but prior to her contact of an EEO Counselor. Final Decision: Accordingly, the agency's decision to dismiss complainant's complaint on the grounds of untimely EEO contact is VACATED.	Barbara L. Boyle v. United States Postal Service 01A04519 August 3, 2001 . Barbara L. Boyle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A04519 Agency No. 1C-443-0029-00 DECISION Complainant initiated contact with an EEO Counselor on January 25, 2000. On April 26, 2000, complainant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the basis of her disability (chronic myalgia - back and hip) when on April 18, 1998, she was denied a light duty assignment. In its decision dated May 8, 2000, the agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(2), on the grounds that complainant failed to contact an EEO Counselor in a timely manner. The agency determined that complainant's EEO contact of January 25, 2000, was more than 45 days after the alleged incident of April 18, 1998. The agency stated that complainant provided no evidence that she was unaware of the time limit for contacting an EEO Counselor. The agency noted that a management official stated in an affidavit that an EEO poster with appropriate EEO counselor contact time frames was clearly posted at complainant's work site. The agency further noted that the EEO Counselor's report indicates that an EEO poster was on display at complainant's work site. Thereafter, complainant filed the instant appeal. In response, the agency asserts that complainant should have had a reasonable suspicion of discrimination when she filed a grievance at the time of the alleged discrimination. The agency further argues that an affidavit indicates that an EEO poster was clearly posted in complainant's workplace at the time of the alleged discrimination. 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)). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that complainant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. Complainant claimed that she was discriminated against when on April 18, 1998, she was denied a light duty assignment. In effect, complainant claims that she was denied a reasonable accommodation of her disability. The Commission has held that a failure to accommodate may constitute a recurring violation, that is, a violation that recurs anew each day that an employer fails to provide an accommodation. See Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994). Here, the agency's alleged violation recurred each day that the agency failed to provide complainant with a reasonable accommodation. However, it is unclear from the record whether complainant eventually received a light duty assignment, and whether she received the assignment more than 45 days before she contacted an EEO Counselor. We note that complainant's request for back pay covers one year and eight days whereas complainant did not contact an EEO Counselor until January 25, 2000, approximately one year and nine months after the alleged discrimination occurred. Complainant did not initiate contact with an EEO Counselor until January 25, 2000. However, we note that the record contains a statement from complainant wherein she claimed that she was unaware that she could utilize the EEO process until January 20, 2000. The affidavit submitted by the Manager of Processing and Distribution states that an EEO poster setting forth the 45-day limitation period for contacting an EEO Counselor was posted on the workroom floor at complainant's work facility. However, the affidavit does not state that the EEO poster was posted at the time that the alleged discrimination occurred. Therefore, we find that a supplemental investigation is necessary in order to determine whether complainant had constructive notice of the proper time period for contacting an EEO Counselor, and whether and when complainant received a light duty assignment after the alleged discrimination but prior to her contact of an EEO Counselor. Accordingly, the agency's decision to dismiss complainant's complaint on the grounds of untimely EEO contact is VACATED. This matter 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: 1) The agency shall supplement the record with documentation indicating whether and when complainant received a light duty assignment prior to her contact of an EEO Counselor on January 25, 2000. The agency shall supplement the record with an affidavit or other statement from individuals who have knowledge of the EEO posters, attesting to whether posters containing the 45-day time limit were posted at complainant's work site on April 18, 1998, and if complainant received a light duty assignment more than 45 days before she contacted an EEO Counselor, whether such posters were posted in the period commencing with complainant's return to work in a light duty assignment. The agency shall also supplement the record with a copy of the relevant EEO poster. The agency shall supplement the record with any other evidence regarding the issue of when complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency shall, within thirty (30) calendar days of the date this decision becomes final, issue a notice of processing or new decision. A copy of the notice of processing or new agency decision 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 August 3, 2001 __________________ Date	[ "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)", "Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994)", "861 F.2d 746", "29 C.F.R. § 1614.503(a)", ...	[ -0.0698368027806282, 0.042447444051504135, 0.0489942766726017, 0.03510383144021034, 0.022857332602143288, 0.03329162299633026, 0.04832412675023079, 0.07170412689447403, -0.044751234352588654, 0.003994989674538374, 0.0554276667535305, 0.004587223753333092, -0.011846862733364105, -0.01162690...
104	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01973714_r.txt	01973714_r.txt	TXT	text/plain	10,804		February 24, 1997	Appeal Number: 01973714 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., the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq., and the Equal Pay Act, 29 U.S.C. §206(d). The final agency decision was issued on February 24, 1997. The appeal was postmarked April 2, 1997. Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Final Decision: Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Accordingly, we find that the agency's decision to dismiss allegation 2 for failure to timely contact an EEO Counselor was proper and is AFFIRMED.	Beverly Johnson, ) Appellant, ) ) v. ) Appeal No. 01973714 ) Agency No. 97-NCR-WP-BWJ-3 David J. Barram, ) Administrator, ) General Services Administration, ) 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., the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq., and the Equal Pay Act, 29 U.S.C. §206(d). The final agency decision was issued on February 24, 1997. The appeal was postmarked April 2, 1997. Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Accordingly, we find that the agency's decision to dismiss allegation 2 for failure to timely contact an EEO Counselor 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. 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: Dec. 11, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations1 The dismissal of a complaint or a portion of a complaint may be appealed to the Commission within thirty (30) calendar days of the date of the complainant's receipt of the dismissal or final decision. See 29 C.F.R. §1614.402(a). Because the agency failed on appeal to supply a copy of the certified mail receipt or any other material capable of establishing that date, the Commission presumes that the appeal was filed within thirty (30) calendar days of the date of appellant's receipt of the final decision.	[ "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.09397958964109421, 0.06279914826154709, -0.036167699843645096, 0.013895195908844471, 0.045320067554712296, 0.08515794575214386, 0.029000280424952507, 0.03255563974380493, -0.05539799481630325, 0.05613449215888977, 0.04594093933701515, -0.004954753443598747, -0.012680776417255402, -0.030...
105	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01973714.txt	01973714.txt	TXT	text/plain	10,498		December 11, 1998	Appeal Number: 01973714 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., the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq., and the Equal Pay Act, 29 U.S.C. §206(d). The final agency decision was issued on February 24, 1997. The appeal was postmarked April 2, 1997. Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Final Decision: Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Accordingly, we find that the agency's decision to dismiss allegation 2 for failure to timely contact an EEO Counselor was proper and is AFFIRMED.	Beverly Johnson v. General Services Administration 01973714 December 11, 1998 Beverly Johnson, ) Appellant, ) ) v. ) Appeal No. 01973714 ) Agency No. 97-NCR-WP-BWJ-3 David J. Barram, ) Administrator, ) General Services Administration, ) 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., the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq., and the Equal Pay Act, 29 U.S.C. §206(d). The final agency decision was issued on February 24, 1997. The appeal was postmarked April 2, 1997. Accordingly, the appeal is considered timely<1> (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. On December 23, 1996, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the bases of sex and in reprisal for prior EEO activity. On February 24, 1997, the agency issued a final decision. The agency determined that appellant's complaint was comprised of two allegations that were identified in the following fashion: 1. On December 5, 1996, an agency official interfered in the pre-complaint processing of her complaint. 2. On October 10, 1995, appellant was denied a promotion, equal pay, and monetary awards in reference to the same job duties performed by male employees. The agency accepted allegation 1 for investigation. The agency dismissed allegation 2 on the grounds that appellant failed to initiate contact with an EEO Counselor in a timely fashion. In its final decision, the agency did not explicitly state the date of appellant's initial EEO Counselor contact. The record, however, contains an Initial Complaint Contact/Interview Worksheet reflecting that appellant's initial EEO Counselor contact occurred on September 3, 1996. On appeal, appellant's attorney argues that appellant did not initiate contact with an EEO Counselor on September 3, 1996, as determined by the agency. Appellant's attorney argues that on the date that the alleged discriminatory event addressed in allegation 2 occurred, October 10, 1995, appellant initiated contact with an EEO Counselor. Appellant's attorney further argues that after not hearing from agency EEO officials for approximately eleven months, appellant again contacted an agency EEO official in September 1996. Appellant's attorney submits an affidavit from appellant addressing this matter. In response, the agency argues that appellant did not initiate contact with an EEO Counselor on October 10, 1995, and submits affidavits from two agency EEO officials in support of its argument that appellant's initial EEO Counselor contact occurred in September 1996, and not in October 1995. The record in this case contains the affidavits of an agency Regional EEO Officer and an agency EEO Specialist, dated May 21, 1997. Therein, the EEO officials stated that it is the custom and practice of the EEO office to fill out a worksheet every time that an agency employee contacts the EEO office to seek counseling with an EEO Counselor; that the agency records reflect that appellant did not initiate contact with an EEO Counselor on October 10, 1995; and that the records instead reflect that appellant initiated contact with an EEO Counselor on September 3, 1996. In support of their statements, the EEO officials submitted a copy of an Initial Complainant Contact/Interview Worksheet, prepared by the EEO Specialist, reflecting that appellant initiated contact with an EEO Counselor on September 3, 1996. 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. The Commission determines that there is sufficient evidence in the record that appellant did not contact an agency EEO Counselor in October 1995, regarding the matter raised in allegation 2, as argued by appellant on appeal. We note that the record contains the affidavits of two agency EEO officials supporting a finding that appellant's initial EEO Counselor contact with respect to the matter raised in allegation 2 occurred on September 3, 1996. Appellant's initial contact was more than forty-five days after the alleged incident addressed in allegation 2 purportedly occurred. Accordingly, we find that the agency's decision to dismiss allegation 2 for failure to timely contact an EEO Counselor 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. 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: Dec. 11, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations 1 The dismissal of a complaint or a portion of a complaint may be appealed to the Commission within thirty (30) calendar days of the date of the complainant's receipt of the dismissal or final decision. See 29 C.F.R. §1614.402(a). Because the agency failed on appeal to supply a copy of the certified mail receipt or any other material capable of establishing that date, the Commission presumes that the appeal was filed within thirty (30) calendar days of the date of appellant's receipt of the final decision.	[ "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.11960846930742264, 0.02472911961376667, -0.031995128840208054, -0.0017707864753901958, 0.03135466203093529, 0.08288577198982239, 0.032609812915325165, 0.013706217519938946, -0.04524577036499977, 0.02826898917555809, 0.038520172238349915, 0.03977729007601738, 0.013187555596232414, -0.033...
106	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000787.pdf	2019000787.pdf	PDF	application/pdf	9,843	Ervin P, Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.	September 19, 2018	Appeal Number: 2019000787 Background: During the period at issue, Complainant worked as a Work- Life Consultant, GS -11, at the Agency’s 18th Force Support Squadr on (FSS) at the Kadena Airbase in Kadena, Japan. On June 20, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On August 21, 2018, Complainant filed a formal complaint , Complainant claimed that the Agency subjected him to discrimination based race (Black), sex (male), age (YOB: 1960), and reprisal for prior protecte d EEO activity when: Claim 1 : Whether Complainant was retaliated against for filing an informal EEO complaint against his supervisor in October 2017, when on April 30, 2018, the supervisor issued Complainant a non- rebuttal Letter of Counseling (LOC) . Claim 2 : When on April 30, 2018, Complainant stated his previous duties and responsibilities as the Personal Financial Readiness (PFR) Program Manager included additional duties not imposed on the present female PFR Program Manager , who was allowed to diss eminate some of the program’s duties to other staff members, whereas Complainant was not allowed to disseminate program duties/responsibilities. In its September 19, 2018 final decision, the Agency dismissed the formal 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 June 20, 2018, which it found to be beyond the 45- day limitation period. 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 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. 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 occurr ed, 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). The EEO Counselor’s report reflects that Complainant initiated EEO contact on June 20, 2018, which is more than 45 days after the alleged discriminatory event at issue. We acknowledge that Complainant met with the EEO Counselor on two occa sions before June 20, 2018. However, we do not find that Complainant exhibited, though his meetings with the EEO Counselor, the intent to pursue an EEO complaint on those occasions . It is well settled that a complainant satisfies the criterion of EEO Cou nselor 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, the EEO Counselor’s rep ort indicates that Complainant met with the EEO Counselor on June 8, 2018 and on June 11, 2018, but did not file an informal EEO complaint on either occasion. The EEO Counselor’s report indicates that Complainant was instructed on the “EO process and time lines.” The EO record of contact summarizing both meetings state s that Complainant was “hesitant to file an informal EO complaint” and he “still was not sure what he wanted to do.” The record further contains a copy of a June 14, 2018 email submitted by the EEO Counselor to Complainant recommending that Complainant “review the EEOC website so that you can get more information on the EO process, timeline, and the utilization of Facilitation/ADR as an avenue of resolution.” On June 20, 2018, Complainant re sponded to the June 14, 2018 email by stating, “I apologize for the delay, when can we complete the paperwork? When is your next appointment?” Thus, Complainant did not express his intent to file an informal complaint until June 20, 2018. Therefore, the record supports that Complainant did not initiate EEO Counselor contact within the 45- day limitation period. The record further indicates that the EEO Counselor advised Complainant on two occasions about the EEO process and the filing deadlines. Thus, Complainant had constructive knowledge of the EEO complai nt process, including the 45- day limitation period. The Agency’s final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.	Ervin P, Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 2019000787 Agency No. 8T0R18003T DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 19, 2018, 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 a Work- Life Consultant, GS -11, at the Agency’s 18th Force Support Squadr on (FSS) at the Kadena Airbase in Kadena, Japan. On June 20, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On August 21, 2018, Complainant filed a formal complaint , Complainant claimed that the Agency subjected him to discrimination based race (Black), sex (male), age (YOB: 1960), and reprisal for prior protecte d EEO activity when: Claim 1 : Whether Complainant was retaliated against for filing an informal EEO complaint against his supervisor in October 2017, when on April 30, 2018, the supervisor issued Complainant a non- rebuttal Letter of Counseling (LOC) . Claim 2 : When on April 30, 2018, Complainant stated his previous duties and responsibilities as the Personal Financial Readiness (PFR) Program Manager included additional duties not imposed on the present female PFR Program Manager , who was allowed to diss eminate some of the program’s duties to other staff members, whereas Complainant was not allowed to disseminate program duties/responsibilities. In its September 19, 2018 final decision, the Agency dismissed the formal 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 June 20, 2018, which it found to be beyond the 45- day limitation period. The instant appeal followed. 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. 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 occurr ed, 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). The EEO Counselor’s report reflects that Complainant initiated EEO contact on June 20, 2018, which is more than 45 days after the alleged discriminatory event at issue. We acknowledge that Complainant met with the EEO Counselor on two occa sions before June 20, 2018. However, we do not find that Complainant exhibited, though his meetings with the EEO Counselor, the intent to pursue an EEO complaint on those occasions . It is well settled that a complainant satisfies the criterion of EEO Cou nselor 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, the EEO Counselor’s rep ort indicates that Complainant met with the EEO Counselor on June 8, 2018 and on June 11, 2018, but did not file an informal EEO complaint on either occasion. The EEO Counselor’s report indicates that Complainant was instructed on the “EO process and time lines.” The EO record of contact summarizing both meetings state s that Complainant was “hesitant to file an informal EO complaint” and he “still was not sure what he wanted to do.” The record further contains a copy of a June 14, 2018 email submitted by the EEO Counselor to Complainant recommending that Complainant “review the EEOC website so that you can get more information on the EO process, timeline, and the utilization of Facilitation/ADR as an avenue of resolution.” On June 20, 2018, Complainant re sponded to the June 14, 2018 email by stating, “I apologize for the delay, when can we complete the paperwork? When is your next appointment?” Thus, Complainant did not express his intent to file an informal complaint until June 20, 2018. Therefore, the record supports that Complainant did not initiate EEO Counselor contact within the 45- day limitation period. The record further indicates that the EEO Counselor advised Complainant on two occasions about the EEO process and the filing deadlines. Thus, Complainant had constructive knowledge of the EEO complai nt process, including the 45- day limitation period. The Agency’s final decision 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 case if the Complainant or the Agency submit s 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 Opportunit y 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 opposi tion 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 February 5, 2019 _ Date	[ "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. § 1614.604(c)", "42 U.S.C. § 2000e", "29 U.S.C. § 621" ]	[ -0.10852838307619095, 0.07749534398317337, -0.041433949023485184, 0.04074312746524811, 0.038741953670978546, 0.04032239690423012, 0.015192979946732521, -0.04799863323569298, -0.03729357570409775, 0.056409381330013275, 0.06723140925168991, -0.025978006422519684, -0.030997080728411674, 0.031...
107	https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2021001557.pdf	2021001557.pdf	PDF	application/pdf	9,603	Melani F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.	December 2, 2020	Appeal Number: 2021001557 Background: At the time of events giving rise to this complaint, Complainant was form erly employed by the Agency as a Physician (Chief of Occupational Medicine), GP -0602- 15 at the Fort Belvoir Community Hospital in Fort Belvoir, Virginia. Complainant filed an equal employment opportunity (EEO) complaint dated July 10, 2020, alleging tha t the Agenc y discriminated against her based on her race /color (African American /Black ), national origin (Commonwealth of Dominica in the Caribbean), sex (female), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 1 This case has been r andomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non- parties and the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. Legal Analysis: the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. ANALYSIS AND FINDINGS EEOC 29 C.F.R. § 1614.107(a)(8) re quires that prior to a request for a hearing on a case an agency shall dismiss an entire complaint that alleges dissatisfacti on with the processing of a previously filed complaint . Thi s includes informal EEO complaints. All of Complainant ’s allegations fall within the scope of 29 C.F.R. § 1614.107(a)(8) . Final Decision: Accordingly, the Agency properl y dismissed her EEO complaint. We take administrative notice that Complainant’ s prior EEO complaint DHANCR 19 -0024 is pending before an EEOC Adm inistrative Judge (AJ) . On March 9, 2021, t he parties had an initial teleconferenc e before the AJ to discuss the issues for adjudication and othe r matte rs. The next day , explicitly re lying on the Agency’ s prior amended issues acceptance letter , the AJ issued an order recounting claims covering May 2018 – July 2019, with specific listed events from August 2018 to July 22, 2019. On April 1, 2021, in respons e to Compla inant ’s objection to the characteriza tion of her claims and moti on to reopen the EEO investigation, the AJ issued an order notifying Complainant she may file a motion specifically identifying which claims the Agency did not properly identify. Th e AJ also r ecounted that at another teleconference the Agency agreed to interview 18 additional witnesses and the AJ would rule on additional possible ones. The prior comp laint is pending befo re the AJ. Because Complainant ’s prior EEO c omplaint is pending before an AJ, the proper way for her to address her concerns about the EEO processing of that complaint is to raise them with the AJ – which it appears she is doing. The FAD is AFFIRMED.	Melani F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2021001557 Agency No. DHANCR 20 -0040 DECISION On December 2, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 7, 2020 final Agency decision (FAD) dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights A ct 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 was form erly employed by the Agency as a Physician (Chief of Occupational Medicine), GP -0602- 15 at the Fort Belvoir Community Hospital in Fort Belvoir, Virginia. Complainant filed an equal employment opportunity (EEO) complaint dated July 10, 2020, alleging tha t the Agenc y discriminated against her based on her race /color (African American /Black ), national origin (Commonwealth of Dominica in the Caribbean), sex (female), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 1 This case has been r andomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non- parties and the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. ANALYSIS AND FINDINGS EEOC 29 C.F.R. § 1614.107(a)(8) re quires that prior to a request for a hearing on a case an agency shall dismiss an entire complaint that alleges dissatisfacti on with the processing of a previously filed complaint . Thi s includes informal EEO complaints. All of Complainant ’s allegations fall within the scope of 29 C.F.R. § 1614.107(a)(8) . Accordingly, the Agency properl y dismissed her EEO complaint. We take administrative notice that Complainant’ s prior EEO complaint DHANCR 19 -0024 is pending before an EEOC Adm inistrative Judge (AJ) . On March 9, 2021, t he parties had an initial teleconferenc e before the AJ to discuss the issues for adjudication and othe r matte rs. The next day , explicitly re lying on the Agency’ s prior amended issues acceptance letter , the AJ issued an order recounting claims covering May 2018 – July 2019, with specific listed events from August 2018 to July 22, 2019. On April 1, 2021, in respons e to Compla inant ’s objection to the characteriza tion of her claims and moti on to reopen the EEO investigation, the AJ issued an order notifying Complainant she may file a motion specifically identifying which claims the Agency did not properly identify. Th e AJ also r ecounted that at another teleconference the Agency agreed to interview 18 additional witnesses and the AJ would rule on additional possible ones. The prior comp laint is pending befo re the AJ. Because Complainant ’s prior EEO c omplaint is pending before an AJ, the proper way for her to address her concerns about the EEO processing of that complaint is to raise them with the AJ – which it appears she is doing. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Com mission m ay, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establ ish that: 1. The appellate decision involved a clearly erroneous interpretati on of mat erial 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 twe nty (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 Em ployment 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/Port al/Logi n.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 certi fied 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 oppositio n must al so 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 p arty’s re quest 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 reques ts for re considera 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 wi thin 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 offi cial 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 fil e 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 permis sion fr om t he court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot aff ord an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the request s for w aiver 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 actio n (please read the pa ragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR T HE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 22, 2021 Date	[ "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" ]	[ -0.06571746617555618, 0.08862509578466415, 0.024558642879128456, 0.055780909955501556, 0.01172687392681837, 0.0631890594959259, 0.006094860844314098, -0.02964312955737114, -0.04694972559809685, 0.044979434460401535, 0.01479788776487112, -0.02967139706015587, -0.012036523781716824, -0.00085...
108	https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2021001557%20DEC.pdf	2021001557%20DEC.pdf	PDF	application/pdf	9,603	Melani F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.	December 2, 2020	Appeal Number: 2021001557 Background: At the time of events giving rise to this complaint, Complainant was form erly employed by the Agency as a Physician (Chief of Occupational Medicine), GP -0602- 15 at the Fort Belvoir Community Hospital in Fort Belvoir, Virginia. Complainant filed an equal employment opportunity (EEO) complaint dated July 10, 2020, alleging tha t the Agenc y discriminated against her based on her race /color (African American /Black ), national origin (Commonwealth of Dominica in the Caribbean), sex (female), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 1 This case has been r andomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non- parties and the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. Legal Analysis: the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. ANALYSIS AND FINDINGS EEOC 29 C.F.R. § 1614.107(a)(8) re quires that prior to a request for a hearing on a case an agency shall dismiss an entire complaint that alleges dissatisfacti on with the processing of a previously filed complaint . Thi s includes informal EEO complaints. All of Complainant ’s allegations fall within the scope of 29 C.F.R. § 1614.107(a)(8) . Final Decision: Accordingly, the Agency properl y dismissed her EEO complaint. We take administrative notice that Complainant’ s prior EEO complaint DHANCR 19 -0024 is pending before an EEOC Adm inistrative Judge (AJ) . On March 9, 2021, t he parties had an initial teleconferenc e before the AJ to discuss the issues for adjudication and othe r matte rs. The next day , explicitly re lying on the Agency’ s prior amended issues acceptance letter , the AJ issued an order recounting claims covering May 2018 – July 2019, with specific listed events from August 2018 to July 22, 2019. On April 1, 2021, in respons e to Compla inant ’s objection to the characteriza tion of her claims and moti on to reopen the EEO investigation, the AJ issued an order notifying Complainant she may file a motion specifically identifying which claims the Agency did not properly identify. Th e AJ also r ecounted that at another teleconference the Agency agreed to interview 18 additional witnesses and the AJ would rule on additional possible ones. The prior comp laint is pending befo re the AJ. Because Complainant ’s prior EEO c omplaint is pending before an AJ, the proper way for her to address her concerns about the EEO processing of that complaint is to raise them with the AJ – which it appears she is doing. The FAD is AFFIRMED.	Melani F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2021001557 Agency No. DHANCR 20 -0040 DECISION On December 2, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 7, 2020 final Agency decision (FAD) dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights A ct 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 was form erly employed by the Agency as a Physician (Chief of Occupational Medicine), GP -0602- 15 at the Fort Belvoir Community Hospital in Fort Belvoir, Virginia. Complainant filed an equal employment opportunity (EEO) complaint dated July 10, 2020, alleging tha t the Agenc y discriminated against her based on her race /color (African American /Black ), national origin (Commonwealth of Dominica in the Caribbean), sex (female), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 1 This case has been r andomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non- parties and the Commission’s website. 1. Between 20 18 through 2019, the Director, EEO and Diversity Inclus ion Management at Fort Belvoir (EEO Dir ector 1) who also served as an EEO counselor , an EEO Investigator , and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing t o accept and /or thoroughly investigate her discrimination allegations ; 2. Between 2018 through 2019, the Direc tor of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Co mplaints in the s ame office refuse d to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file a n EEO complaint at the Fort Belvoir Comm unity Hospital EEO Office ; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination ; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination ; and 6. On May 27, 2020, she learned that EEO D irector 1 v iolated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EE O Office . The Agency dismissed the c omplai nt because it allege d dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency ’s EEO practitioners ar e “toadies ” who engage in systemic bias against African American health care professional s who seek to address discrimination. ANALYSIS AND FINDINGS EEOC 29 C.F.R. § 1614.107(a)(8) re quires that prior to a request for a hearing on a case an agency shall dismiss an entire complaint that alleges dissatisfacti on with the processing of a previously filed complaint . Thi s includes informal EEO complaints. All of Complainant ’s allegations fall within the scope of 29 C.F.R. § 1614.107(a)(8) . Accordingly, the Agency properl y dismissed her EEO complaint. We take administrative notice that Complainant’ s prior EEO complaint DHANCR 19 -0024 is pending before an EEOC Adm inistrative Judge (AJ) . On March 9, 2021, t he parties had an initial teleconferenc e before the AJ to discuss the issues for adjudication and othe r matte rs. The next day , explicitly re lying on the Agency’ s prior amended issues acceptance letter , the AJ issued an order recounting claims covering May 2018 – July 2019, with specific listed events from August 2018 to July 22, 2019. On April 1, 2021, in respons e to Compla inant ’s objection to the characteriza tion of her claims and moti on to reopen the EEO investigation, the AJ issued an order notifying Complainant she may file a motion specifically identifying which claims the Agency did not properly identify. Th e AJ also r ecounted that at another teleconference the Agency agreed to interview 18 additional witnesses and the AJ would rule on additional possible ones. The prior comp laint is pending befo re the AJ. Because Complainant ’s prior EEO c omplaint is pending before an AJ, the proper way for her to address her concerns about the EEO processing of that complaint is to raise them with the AJ – which it appears she is doing. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Com mission m ay, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establ ish that: 1. The appellate decision involved a clearly erroneous interpretati on of mat erial 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 twe nty (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 Em ployment 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/Port al/Logi n.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 certi fied 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 oppositio n must al so 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 p arty’s re quest 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 reques ts for re considera 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 wi thin 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 offi cial 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 fil e 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 permis sion fr om t he court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot aff ord an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the request s for w aiver 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 actio n (please read the pa ragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR T HE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 22, 2021 Date	[ "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" ]	[ -0.06571746617555618, 0.08862509578466415, 0.024558642879128456, 0.055780909955501556, 0.01172687392681837, 0.0631890594959259, 0.006094860844314098, -0.02964312955737114, -0.04694972559809685, 0.044979434460401535, 0.01479788776487112, -0.02967139706015587, -0.012036523781716824, -0.00085...
109	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01984657_r.txt	01984657_r.txt	TXT	text/plain	19,342		May 26, 1998	Appeal Number: 01984657 Complaint Allegations: In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. Case Facts: On May 26, 1998, the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). Legal Analysis: the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. The agency, however, failed to determine in its final decision whether the continuing violation theory was applicable. Despite this failure by the agency, the Commission finds that appellant cannot avail himself of the continuing violation theory since each of the dismissed allegations was a separate and discrete event which should have given rise to a reasonable suspicion on the part of appellant that he was being discriminated against at the time the event occurred. Consistent with the discussion herein, the agency's dismissal of allegations 1, 2, and 3 is AFFIRMED and the agency's dismissal of allegation 4 is REVERSED. Allegation 4 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.	Fulton C. Carson, ) Appellant, ) ) Appeal No. 01984657 v. ) Agency No. AWGRFO9802I0120 ) Louis Caldera, ) Secretary, ) Department of the Army, ) Agency. ) ) DECISION On May 26, 1998, the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. The agency, however, failed to determine in its final decision whether the continuing violation theory was applicable. Despite this failure by the agency, the Commission finds that appellant cannot avail himself of the continuing violation theory since each of the dismissed allegations was a separate and discrete event which should have given rise to a reasonable suspicion on the part of appellant that he was being discriminated against at the time the event occurred. Consistent with the discussion herein, the agency's dismissal of allegations 1, 2, and 3 is AFFIRMED and the agency's dismissal of allegation 4 is REVERSED. Allegation 4 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 (T0993) This decision affirms the agency's final decision 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 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. 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 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 (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: July 6, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[ "McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)", "Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993)", "Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995)", "Snyder v. Department of Defense, EEOC Request No....	[ -0.047690123319625854, 0.0836668536067009, -0.016753321513533592, -0.039260365068912506, 0.08652428537607193, -0.02718942053616047, 0.12085837125778198, 0.0757066085934639, -0.05259588360786438, 0.054223690181970596, 0.06379919499158859, -0.007236359175294638, -0.04420018941164017, 0.04676...
0	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01984657.txt	01984657.txt	TXT	text/plain	19,461		July 6, 1999	Appeal Number: 01984657 Complaint Allegations: In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. Case Facts: On May 26, 1998, the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). Legal Analysis: the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. The agency, however, failed to determine in its final decision whether the continuing violation theory was applicable. Despite this failure by the agency, the Commission finds that appellant cannot avail himself of the continuing violation theory since each of the dismissed allegations was a separate and discrete event which should have given rise to a reasonable suspicion on the part of appellant that he was being discriminated against at the time the event occurred. Consistent with the discussion herein, the agency's dismissal of allegations 1, 2, and 3 is AFFIRMED and the agency's dismissal of allegation 4 is REVERSED. Allegation 4 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.	Fulton C. Carson v. Department of the Army 01984657 July 6, 1999 Fulton C. Carson, ) Appellant, ) ) Appeal No. 01984657 v. ) Agency No. AWGRFO9802I0120 ) Louis Caldera, ) Secretary, ) Department of the Army, ) Agency. ) ) DECISION On May 26, 1998, the Commission received appellant's appeal of an April 17, 1998 final agency decision. The final agency decision dismissed appellant's complaint for failure to contact an EEO Counselor in a timely manner. In its final agency decision, the agency identified the allegations of appellant's April 8, 1998 complaint as whether appellant was discriminated against on the bases of race, color, and in reprisal when: 1) appellant's supervisor placed him on leave without pay, 2) appellant's supervisor made derogatory comments to him; 3) appellant's supervisor moved appellant's office location; and 4) appellant received a "success level 2" performance rating. In dismissing the allegations, the agency stated that although the first alleged act of discrimination occurred on August 15, 1997, and the last act occurred on December 17, 1997, appellant did not initiate EEO contact until February 18, 1998. The agency noted that appellant was aware of the applicable time limits, having spoken with an EEO Specialist and an EEO Assistant in November 1997 and December 1997. Timeliness of Appeal As an initial matter, the Commission notes that the agency failed to provide a certified mail return receipt or any other material capable of establishing the date when appellant received the final agency decision. Appellant's appeal was received by the Commission on May 26, 1998, in an envelope with a private postage meter date of January 15, 1998. Because the final agency decision was not issued until April 1998, the appeal could not have been mailed on January 15, 1998. The postmark date therefore cannot be determined. On the EEOC Form 573 (Notice of Appeal/Petition), which was contained in the envelope with the January 15, 1998 postage meter date, appellant stated that he received the final agency decision on April 25, 1998. Therefore, appellant had until May 25, 1998 to file an appeal. The appeal was not received until May 26, 1998. However, in the absence of a legible postmark, an appeal may be deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Since the agency has not provided any information regarding appellant's receipt of the final agency decision and the appeal was received within five days of May 25, 1998, the appeal is accepted as timely (see, 29 C.F.R. §1614.402(a)), in accordance with the provisions of EEOC Order No. 960, as amended. Untimely EEO Contact On appeal, appellant asserts that he contacted Counselor A on January 12, 1998, but that she told him that she was not trained and preferred not to take his case. Appellant also asserts that he then called Counselor B on January 13, 1998, and that she counseled him for 18 days until she moved to another office. Appellant asserts further that on February 18, 1998, the day after Counselor B moved, he was contacted by the EEO Officer who told him that he had to select another EEO Counselor. On February 18, 1998, he contacted Counselor C. In support of his assertions on appeal, appellant submitted an April 29, 1998 Memorandum from Counselor B to the EEO Officer. The Memorandum reveals that appellant met with Counselor B on January 13, 1998, and he specifically discussed his performance rating, being placed on leave without pay and a promotion to a grade 11. The Memorandum further reflects that Counselor B met with appellant on three occasions and that the two last met in February 1998. The record also contains an affidavit of the EEO Specialist wherein she states that appellant came to her in early November 1997, and early December 1997, but not thereafter. The EEO Specialist's affidavit further reflects that appellant stated that he was having problems at work and specifically noted that he was placed on leave without pay on August 15, 1997, and spoken to in a negative manner by his supervisor on October 13, 1997. The affidavit also reflects that the EEO Specialist explained the EEO process to appellant and the time frames for EEO contact but appellant seemed hesitant to contact an EEO Counselor. The record also contains the affidavit of the EEO Assistant. Therein, she states that in November 1997, and December 1997, appellant came to the EEO office to meet with the EEO Specialist and talked to her while waiting to see the EEO Specialist. The affidavit also reveals that when appellant stated to the EEO Assistant that he believed his supervisor was retaliating against him, she informed him that she was an EEO Counselor, advised him about the 45-day time limit and gave him the names of other EEO Counselors. The EEO Assistant also states in her affidavit that on December 23, 1997, appellant came to the office and stated that he was not satisfied with his recent performance rating and he was concerned about issues previously discussed with the EEO Specialist. The EEO Assistant again informed appellant of the time limitations but appellant stated that he was undecided about how he wanted to pursue his concerns. The record also contains a November 6, 1998 EEO Counselor's Report, prepared by Counselor C. The Counselor's Report reveals that appellant had an initial interview with Counselor C on February 18, 1998, during which appellant alleged, in relevant part, that on August 15, 1997, he found out that he was placed on leave without pay; that his supervisor made degrading remarks to appellant about his work performance on October 17, 1997; that in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating, although he should have received a higher rating. In his complaint, appellant recounted these allegations. Generally, an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. See 29 C.F.R. §1614.105(a)(1). 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. The Commission has held that the time requirement for contacting an EEO Counselor may be waived when the complainant alleges a continuing violation. McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990). If, however, appellant had prior knowledge or suspicion of discrimination, the continuing violation theory is not applicable. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990)(plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993). In addition, discrete acts of discrimination taking place at identifiable points in time are not continuing violations for the purpose of extending the limitations period. Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995). The final agency decision does not provide the dates when each of the dismissed allegations occurred. Nonetheless, the Commission finds based on appellant's complaint and the Counselor's Report that appellant was placed on leave without pay on August 15, 1997; that the negative comments were made during an October 17, 1997 meeting between appellant and his supervisor to discuss appellant's performance; in November 1997, appellant was moved to a smaller office; and that on December 17, 1997, appellant received a successful performance rating. Appellant does not dispute, and the Commission finds, that appellant was aware of the applicable time limitations. Regarding allegations 1 and 2, the Commission finds that EEO Counselor contact was untimely. Appellant had until September 29, 1997, to contact an EEO Counselor regarding allegation 1 which occurred on August 15, 1997. Since the record reveals that there was no EEO contact until in November 1997, at the earliest, the contact was untimely. Regarding allegation 2, appellant had until December 31, 1997, to make timely contact since the incident occurred on October 17, 1997. Although appellant initiated EEO contact in November and December 1997, regarding allegation 2, the Commission finds, based upon the affidavits of the EEO Specialist and the EEO Assistant, that appellant did not then exhibit an intent to pursue the EEO process. 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). Consistent with this finding that appellant failed to pursue the EEO process is the EEO Officer's Memorandum which reflects that appellant did not mention allegation 2 when he met with Counselor B in January 1998. Regarding allegation 3, the Commission finds that appellant's contact was also not timely. The Commission notes that the record does not reveal when in November 1997, appellant had to move to a smaller office. Using the last day in November, i.e., November 30, 1997, appellant had, at the latest, until January 14, 1998, to make timely contact. In the EEO Officer's Memorandum, the office location issue was not mentioned as one of the allegations raised with her when appellant met with her in January 1998. Therefore, the Commission finds that appellant's contact was untimely. Regarding allegation 4, the Commission finds that appellant contacted the EEO Officer on January 13, 1998, with the intent to pursue the EEO process on the performance evaluation issue. Since appellant had until January 31, 1998, to initiate contact, his contact was therefore timely. The Memorandum of the EEO Officer reflects that appellant contacted her on January 13, 1998, regarding his performance evaluation and that he met with her twice thereafter, one time of which was in February 1998. Appellant started counseling with Counselor C on February 18, 1998, and the performance evaluation issue was among the issues counseled. As a final matter, the Commission notes that appellant alleged in his complaint that the agency's discriminatory actions were ongoing. The agency, however, failed to determine in its final decision whether the continuing violation theory was applicable. Despite this failure by the agency, the Commission finds that appellant cannot avail himself of the continuing violation theory since each of the dismissed allegations was a separate and discrete event which should have given rise to a reasonable suspicion on the part of appellant that he was being discriminated against at the time the event occurred. Consistent with the discussion herein, the agency's dismissal of allegations 1, 2, and 3 is AFFIRMED and the agency's dismissal of allegation 4 is REVERSED. Allegation 4 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 (T0993) This decision affirms the agency's final decision 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 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. 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 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 (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: July 6, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[ "McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)", "Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993)", "Woljan v. Environmental Protection Agency, EEOC Request No. 05950361 (October 5, 1995)", "Snyder v. Department of Defense, EEOC Request No....	[ -0.057456184178590775, 0.06471144407987595, -0.03476012498140335, -0.01839914359152317, 0.0857088640332222, -0.0018954448169097304, 0.11835574358701706, 0.07903574407100677, -0.05907745286822319, 0.0733499675989151, 0.033636946231126785, 0.004952822346240282, -0.023930741474032402, 0.06755...
1	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101570.txt	0120101570.txt	TXT	text/plain	9,516	Denise Koutrouba, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.	January 22, 2010	Appeal Number: 0120101570 Complaint Allegations: in her complaint, dated November 18, 2009, Complainant, a Nurse Practitioner, at the Agency's Tripler Army Medical Center, Hawaii, alleged discrimination based on disability and in reprisal for prior EEO activity when she was purportedly subjected to harassment by her then Supervisor from August 1, 2007, through August 2, 2009, concerning her leave, performance rating/evaluation, a demotion from her supervisory position to current non-supervisory position, and working conditions. Complainant indicated that in late March 2009, the Supervisor informed her that she would be demoted from her supervisory position to non-supervisory position and would be transferred to the Schofield Barracks (SB) Health Clinic. The record indicates that on August 2, 2009, she was reassigned from the Department of Preventative Medicine, under the Supervisor's supervision to the SB Health Clinic. In her formal complaint, Complainant indicates that her initial contact with an EEO Counselor (E1) regarding the instant complaint was September 24, 2009, which was beyond the 45-day time limit set by the regulations. Background: The record indicated that in her complaint, dated November 18, 2009, Complainant, a Nurse Practitioner, at the Agency's Tripler Army Medical Center, Hawaii, alleged discrimination based on disability and in reprisal for prior EEO activity when she was purportedly subjected to harassment by her then Supervisor from August 1, 2007, through August 2, 2009, concerning her leave, performance rating/evaluation, a demotion from her supervisory position to current non-supervisory position, and working conditions. Complainant indicated that in late March 2009, the Supervisor informed her that she would be demoted from her supervisory position to non-supervisory position and would be transferred to the Schofield Barracks (SB) Health Clinic. The record indicates that on August 2, 2009, she was reassigned from the Department of Preventative Medicine, under the Supervisor's supervision to the SB Health Clinic. In her formal complaint, Complainant indicates that her initial contact with an EEO Counselor (E1) regarding the instant complaint was September 24, 2009, which was beyond the 45-day time limit set by the regulations. Legal Analysis: Upon review, the Commission finds that the Agency's decision dated January 22, 2010, dismissing Complainant's complaint due to untimely EEO Counselor contact is proper pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency's decision dismissing the complaint is AFFIRMED. BACKGROUND The record indicated that in her complaint, dated November 18, 2009, Complainant, a Nurse Practitioner, at the Agency's Tripler Army Medical Center, Hawaii, alleged discrimination based on disability and in reprisal for prior EEO activity when she was purportedly subjected to harassment by her then Supervisor from August 1, 2007, through August 2, 2009, concerning her leave, performance rating/evaluation, a demotion from her supervisory position to current non-supervisory position, and working conditions. Complainant indicated that in late March 2009, the Supervisor informed her that she would be demoted from her supervisory position to non-supervisory position and would be transferred to the Schofield Barracks (SB) Health Clinic. The record indicates that on August 2, 2009, she was reassigned from the Department of Preventative Medicine, under the Supervisor's supervision to the SB Health Clinic. In her formal complaint, Complainant indicates that her initial contact with an EEO Counselor (E1) regarding the instant complaint was September 24, 2009, which was beyond the 45-day time limit set by the regulations. 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 EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. Complainant maintained that she contacted a number of Agency officials to complain about the Supervisor's hostility since September 2008. She also maintained that she even contacted the Agency EO Advisor on October 22, 2008, concerning the matters but he did not inform her to file an EEO complaint at that time. Instead, the Agency EO Advisor referred her to the Agency Social Work Chief/the Chair of the Hostile Work Environment Committee. The Agency then assigned an Article 15-6 investigator to conduct an investigation concerning Complainant's complaint. Complainant indicated that on March 26, 2009, she, and her husband, previously contacted E1 but she was told that she did not have a "justifiable" EEO complaint. 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 intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). In response to Complainant's contentions, the Agency EO Advisor, described above, admits meeting with Complainant in October 2008. The Agency EO Advisor's May 12, 2010, Declaration. He, however, indicates that he did not refer Complainant to the Agency EEO Office because Complainant did not allege any discriminatory incidents on the part of the Agency at that meeting. Id. Complainant maintained that the Agency should be equitably estopped from asserting untimely EEO Counselor contact. However, the E1 and E2 denied that they in anyway dissuaded Complainant from pursuing the EEO complaint process. Specifically, the E1 and another EEO Counselor (E2) at the Agency indicate that on March 26, 2009, Complainant, and her husband, did come to their EEO Office concerning her harassment issue. E1 and E2's March 12, 2010, Declarations. E2 stated that Complainant did not provide any EEO basis for her claims during their March 26, 2009 conversation. E2's March 12, 2010, Declaration. Complainant's husband, then, advised Complainant that "perhaps the EEO Office was not the proper venue to pursue her complaint." Id. On appeal, Complainant does not dispute this. Complainant then voluntarily declined to pursue her complaint at that time. The E2 also indicates that during the March 26, 2009 meeting, she advised Complainant the 45-day time limit would continue to run. Id. The E1 states that during Complainant's subsequent October 2009 EEO counseling, Complainant stated to her that "she was aware that she was past the 45-day time limit" to file a complaint but still wanted to continue the process because her attorney advised her to do so. E1's March 12, 2010, Declaration. On appeal, Complainant does not dispute this. Based on the foregoing, we find that Complainant previously contacted an EEO Counselor and other Agency officials purportedly logically connected with the EEO process. However, despite Complainant's contentions, we find no evidence that Complainant exhibited any intent to begin the EEO process in a timely manner. Also, it appears that Complainant attempted to resolve the matters via the Agency's officials and via the Article 15-6 investigation. However, the Commission has held that the internal appeal of an agency action does not toll the running of EEO time limitations. See Hosford v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989). Based on the foregoing, we find that Complainant failed to present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. Furthermore, we note that Complainant did not indicate that she was not aware of the 45-day time limit to contact an EEO Counselor at the time of the alleged incidents. Final Decision: Accordingly, the Agency's final decision is AFFIRMED.	Denise Koutrouba, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120101570 Agency No. ARSHAFTER09OCT04539 DECISION Upon review, the Commission finds that the Agency's decision dated January 22, 2010, dismissing Complainant's complaint due to untimely EEO Counselor contact is proper pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency's decision dismissing the complaint is AFFIRMED. BACKGROUND The record indicated that in her complaint, dated November 18, 2009, Complainant, a Nurse Practitioner, at the Agency's Tripler Army Medical Center, Hawaii, alleged discrimination based on disability and in reprisal for prior EEO activity when she was purportedly subjected to harassment by her then Supervisor from August 1, 2007, through August 2, 2009, concerning her leave, performance rating/evaluation, a demotion from her supervisory position to current non-supervisory position, and working conditions. Complainant indicated that in late March 2009, the Supervisor informed her that she would be demoted from her supervisory position to non-supervisory position and would be transferred to the Schofield Barracks (SB) Health Clinic. The record indicates that on August 2, 2009, she was reassigned from the Department of Preventative Medicine, under the Supervisor's supervision to the SB Health Clinic. In her formal complaint, Complainant indicates that her initial contact with an EEO Counselor (E1) regarding the instant complaint was September 24, 2009, which was beyond the 45-day time limit set by the regulations. 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 EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. Complainant maintained that she contacted a number of Agency officials to complain about the Supervisor's hostility since September 2008. She also maintained that she even contacted the Agency EO Advisor on October 22, 2008, concerning the matters but he did not inform her to file an EEO complaint at that time. Instead, the Agency EO Advisor referred her to the Agency Social Work Chief/the Chair of the Hostile Work Environment Committee. The Agency then assigned an Article 15-6 investigator to conduct an investigation concerning Complainant's complaint. Complainant indicated that on March 26, 2009, she, and her husband, previously contacted E1 but she was told that she did not have a "justifiable" EEO complaint. 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 intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). In response to Complainant's contentions, the Agency EO Advisor, described above, admits meeting with Complainant in October 2008. The Agency EO Advisor's May 12, 2010, Declaration. He, however, indicates that he did not refer Complainant to the Agency EEO Office because Complainant did not allege any discriminatory incidents on the part of the Agency at that meeting. Id. Complainant maintained that the Agency should be equitably estopped from asserting untimely EEO Counselor contact. However, the E1 and E2 denied that they in anyway dissuaded Complainant from pursuing the EEO complaint process. Specifically, the E1 and another EEO Counselor (E2) at the Agency indicate that on March 26, 2009, Complainant, and her husband, did come to their EEO Office concerning her harassment issue. E1 and E2's March 12, 2010, Declarations. E2 stated that Complainant did not provide any EEO basis for her claims during their March 26, 2009 conversation. E2's March 12, 2010, Declaration. Complainant's husband, then, advised Complainant that "perhaps the EEO Office was not the proper venue to pursue her complaint." Id. On appeal, Complainant does not dispute this. Complainant then voluntarily declined to pursue her complaint at that time. The E2 also indicates that during the March 26, 2009 meeting, she advised Complainant the 45-day time limit would continue to run. Id. The E1 states that during Complainant's subsequent October 2009 EEO counseling, Complainant stated to her that "she was aware that she was past the 45-day time limit" to file a complaint but still wanted to continue the process because her attorney advised her to do so. E1's March 12, 2010, Declaration. On appeal, Complainant does not dispute this. Based on the foregoing, we find that Complainant previously contacted an EEO Counselor and other Agency officials purportedly logically connected with the EEO process. However, despite Complainant's contentions, we find no evidence that Complainant exhibited any intent to begin the EEO process in a timely manner. Also, it appears that Complainant attempted to resolve the matters via the Agency's officials and via the Article 15-6 investigation. However, the Commission has held that the internal appeal of an agency action does not toll the running of EEO time limitations. See Hosford v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989). Based on the foregoing, we find that Complainant failed to present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. Furthermore, we note that Complainant did not indicate that she was not aware of the 45-day time limit to contact an EEO Counselor at the time of the alleged incidents. 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 8/17/10 __________________ Date	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "Hosford v. Veterans Administration, EEOC Request No. 05890038 (June 9, 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. § 1614.604(c)", "42 U.S.C....	[ -0.08263804018497467, 0.05646052956581116, -0.014652593061327934, 0.061741430312395096, 0.06074661388993263, 0.083635613322258, 0.02161439135670662, 0.012723159044981003, -0.025047609582543373, 0.01808190904557705, 0.031284186989068985, -0.02974541485309601, 0.028872113674879074, -0.005322...
2	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093248.txt	0120093248.txt	TXT	text/plain	9,779	Roger T. Brown, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.	July 28, 2009	Appeal Number: 0120093248 Background: At the time of events giving rise to this complaint, Complainant worked as a Dentist at the Caldwell Dental Clinic located at the Agency's Fort Jackson, South Carolina. Complainant filed a formal complaint dated July 8, 2009, alleging that the Agency subjected him to discrimination on the bases of race, sex, religion, color, disability, age, and in reprisal for opposing practices made unlawful under EEO laws when: 1. In January 2009, Complainant was subjected to verbal abuse directed at him by Colonel X, Dental Activity (race, color, sex, age, religion, and disability). 2. On January 18, 2009, Complainant informed Colonel Y, Dental Activity, about the verbal abuse and nothing was done to effectively stop the verbal abuse (reprisal). The Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not initiate EEO Counselor contact until June 15, 2009, which was 94 days after Complainant last worked at the Agency. The Agency determined Complainant's EEO Counselor contact was beyond the applicable limitation period. On appeal, Complainant submitted a copy of the Agency's final decision with a handwritten notation at the bottom stating that no constructive knowledge was given to him and stating that he was not provided any information regarding EEO. In response to Complainant's appeal, the Agency stated that Complainant's appeal was properly dismissed for untimely EEO Counselor contact. Additionally, the Agency argued that Complainant's complaint should also be dismissed for lack of jurisdiction on the grounds that Complainant was not an employee of the Agency, but rather, an independent consultant for a staffing firm. Legal Analysis: The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). 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 a Dentist at the Caldwell Dental Clinic located at the Agency's Fort Jackson, South Carolina. Complainant filed a formal complaint dated July 8, 2009, alleging that the Agency subjected him to discrimination on the bases of race, sex, religion, color, disability, age, and in reprisal for opposing practices made unlawful under EEO laws when: 1. In January 2009, Complainant was subjected to verbal abuse directed at him by Colonel X, Dental Activity (race, color, sex, age, religion, and disability). 2. On January 18, 2009, Complainant informed Colonel Y, Dental Activity, about the verbal abuse and nothing was done to effectively stop the verbal abuse (reprisal). The Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not initiate EEO Counselor contact until June 15, 2009, which was 94 days after Complainant last worked at the Agency. The Agency determined Complainant's EEO Counselor contact was beyond the applicable limitation period. On appeal, Complainant submitted a copy of the Agency's final decision with a handwritten notation at the bottom stating that no constructive knowledge was given to him and stating that he was not provided any information regarding EEO. In response to Complainant's appeal, the Agency stated that Complainant's appeal was properly dismissed for untimely EEO Counselor contact. Additionally, the Agency argued that Complainant's complaint should also be dismissed for lack of jurisdiction on the grounds that Complainant was not an employee of the Agency, but rather, an independent consultant for a staffing firm. ANALYSIS AND FINDINGS At the outset, we note that the Commission will only review the propriety of the Agency's dismissal of the present complaint under 29 C.F.R. § 1614.107(a)(1). Although the Agency, for the first time on appeal, raises the claim that Complainant is not an Agency employee, we note that the Agency did not dismiss Complainant's complaint on this ground. Thus, we will not address on appeal the Agency's argument that Complainant is not an Agency employee. 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). 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. Dep't 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. In the present case, the record contains a signed, sworn declaration from Person A, a Non-Commissioned Officer in Charge at the Caldwell Dental Clinic stating that the EEO Poster attached to his declaration has been on display at the Caldwell Dental Clinic since his arrival there the second week of November 2008. Person A noted that this EEO Poster has been posted on a bulletin board located at one of the staff entrances to the Caldwell Dental Clinic. Person A noted that the EEO Poster advised employees of the time requirements for contacting an EEO Official. The record contains a copy of the EEO Poster attached to Person A's declaration which informs applicants and employees that they must contact an EEO Official within 45 days of the alleged discriminatory action. The EEO Poster also contains the name and phone number of the EEO Counselors at the Agency. Further, the record contains photograph of the bulletin board, showing its location at the staff entrance; the placement of the EEO poster is clearly visible in the photograph. Upon review, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record discloses that the alleged discriminatory incidents occurred at the latest on March 13, 2009, when Complainant was terminated by the Agency; however, he did not initiate EEO Counselor contact until June 15, 2009. By producing the sworn declaration from Person A, the EEO Poster, and the photograph, as described above, we find the Agency has satisfied its burden of showing that Complainant had constructive knowledge of the relevant time frame for EEO Counselor contact. 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 is AFFIRMED.	Roger T. Brown, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120093248 Agency No. ARJACKSON09JUN02504 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated July 28, 2009, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). 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 a Dentist at the Caldwell Dental Clinic located at the Agency's Fort Jackson, South Carolina. Complainant filed a formal complaint dated July 8, 2009, alleging that the Agency subjected him to discrimination on the bases of race, sex, religion, color, disability, age, and in reprisal for opposing practices made unlawful under EEO laws when: 1. In January 2009, Complainant was subjected to verbal abuse directed at him by Colonel X, Dental Activity (race, color, sex, age, religion, and disability). 2. On January 18, 2009, Complainant informed Colonel Y, Dental Activity, about the verbal abuse and nothing was done to effectively stop the verbal abuse (reprisal). The Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not initiate EEO Counselor contact until June 15, 2009, which was 94 days after Complainant last worked at the Agency. The Agency determined Complainant's EEO Counselor contact was beyond the applicable limitation period. On appeal, Complainant submitted a copy of the Agency's final decision with a handwritten notation at the bottom stating that no constructive knowledge was given to him and stating that he was not provided any information regarding EEO. In response to Complainant's appeal, the Agency stated that Complainant's appeal was properly dismissed for untimely EEO Counselor contact. Additionally, the Agency argued that Complainant's complaint should also be dismissed for lack of jurisdiction on the grounds that Complainant was not an employee of the Agency, but rather, an independent consultant for a staffing firm. ANALYSIS AND FINDINGS At the outset, we note that the Commission will only review the propriety of the Agency's dismissal of the present complaint under 29 C.F.R. § 1614.107(a)(1). Although the Agency, for the first time on appeal, raises the claim that Complainant is not an Agency employee, we note that the Agency did not dismiss Complainant's complaint on this ground. Thus, we will not address on appeal the Agency's argument that Complainant is not an Agency employee. 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). 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. Dep't 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. In the present case, the record contains a signed, sworn declaration from Person A, a Non-Commissioned Officer in Charge at the Caldwell Dental Clinic stating that the EEO Poster attached to his declaration has been on display at the Caldwell Dental Clinic since his arrival there the second week of November 2008. Person A noted that this EEO Poster has been posted on a bulletin board located at one of the staff entrances to the Caldwell Dental Clinic. Person A noted that the EEO Poster advised employees of the time requirements for contacting an EEO Official. The record contains a copy of the EEO Poster attached to Person A's declaration which informs applicants and employees that they must contact an EEO Official within 45 days of the alleged discriminatory action. The EEO Poster also contains the name and phone number of the EEO Counselors at the Agency. Further, the record contains photograph of the bulletin board, showing its location at the staff entrance; the placement of the EEO poster is clearly visible in the photograph. Upon review, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record discloses that the alleged discriminatory incidents occurred at the latest on March 13, 2009, when Complainant was terminated by the Agency; however, he did not initiate EEO Counselor contact until June 15, 2009. By producing the sworn declaration from Person A, the EEO Poster, and the photograph, as described above, we find the Agency has satisfied its burden of showing that Complainant had constructive knowledge of the relevant time frame for EEO Counselor contact. 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 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 (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 (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 8/17/11 __________________ Date 01-2009-3248	[ "Thompson v. Dep't of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "29 C.F.R. § 1614.405(a)", "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", "29 U.S.C. § 621", "29 ...	[ -0.12618979811668396, 0.04866449162364006, -0.07433950901031494, 0.01248361449688673, -0.03264123573899269, 0.07530667632818222, -0.004071097355335951, -0.02354998141527176, -0.05766402930021286, 0.05473463609814644, 0.020869186148047447, -0.01550381537526846, 0.010892118327319622, 0.02341...
3	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150686.r.txt	0120150686.r.txt	TXT	text/plain	9,234		November 6, 2014	Appeal Number: 0120150686 Background: On December 2, 2012, Complainant was hired as a Systems Accountant at the Agency's Financial Services Division in Alexandria, Virginia, under Schedule A, Excepted Service appointment and subject to a two-year probationary period. On May 13, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 24, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior EEO activity when: on January 10, 2014, she was terminated during her probationary period from her position as System Accountant. The record reflects that on May 6, 2014, Complainant, through her attorney, called the Agency's EEO office to ascertain the status of a request for EEO counseling which Complainant's attorney asserted had previously been initiated. After the Director of the EEO office spoke with the Complaints Manager on May 9, 2014, it was determined that any EEO counseling request which Complainant had previously attempted had not been received by the EEO office. Thereafter, on May 9, 2014, Complainant's attorney submitted a copy of an e-mail dated February 12, 2014, in which he stated was forwarded on behalf of his client to the EEO office requesting EEO counseling. A review of the February 12, 2014 email indicated that it was forwarded to an incorrect email address. Consequently, an EEO Counselor was assigned on May 13, 2014, and counseling continued until the Notice of Right to File a Discrimination Complaint was issued on June 6, 2014. The instant complaint was filed on June 24, 2014. In its final decision, the Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 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 record reflects that on January 9, 2014, Complainant received a letter from the Chief, Office of Finance informing her that effective close of business on January 10, 2014, she was being terminated during her probationary period. The January 9, 2014 letter also placed Complainant on notice that if she believed the termination was taken because of discrimination, she could file a discrimination complaint by calling the EEO office within 45 days of the effective date of the action. A telephone number was expressly provided for contact with the EEO office and/or for further information concerning the EEO complaint process. The record further reflects that neither Complainant nor her attorney telephoned the EEO office referenced above to initiate a request for counseling. Rather, Complainant's attorney drafted a letter dated February 12, 2014, and submitted it via email to what he determined belong to a named EEO officer. However, the February 12, 2014 letter was never received by the EEO Officer because the email address was incorrect, and apparently was transmitted to another Agency employee with the same first and last name. This error was not discovered until May 9, 2014, after Complainant's attorney made a telephone inquiry to the EEO office on May 6, 2014. It is undisputed that on January 9, 2014, Complainant was placed on notice that she would be terminated during her probationary period effective January 10, 2014, but she and her attorney did not further pursue this matter with the EEO office until May 6, 2014, which is beyond the forty-five day limitation period. The major issue is whether mistakenly sending the February 12, 2014 letter to the wrong email address for the EEO Officer constitutes valid EEO Counselor contact. However, despite this letter, which was issued prior to the expiration of the 45-day limitation period (on February 12, 2014), Complainant's attorney waited until May 6, 2014 to inquire about the status of Complainant's request for counseling. Complainant and her attorney have not provided an adequate explanation for why they did not promptly contact the EEO office at the telephone number provided in Complainant's January 9, 2014 termination letter. In summary, we determine that, 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). The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED	Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 0120150686 Agency No. USM-2014-00601 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 6, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On December 2, 2012, Complainant was hired as a Systems Accountant at the Agency's Financial Services Division in Alexandria, Virginia, under Schedule A, Excepted Service appointment and subject to a two-year probationary period. On May 13, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 24, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior EEO activity when: on January 10, 2014, she was terminated during her probationary period from her position as System Accountant. The record reflects that on May 6, 2014, Complainant, through her attorney, called the Agency's EEO office to ascertain the status of a request for EEO counseling which Complainant's attorney asserted had previously been initiated. After the Director of the EEO office spoke with the Complaints Manager on May 9, 2014, it was determined that any EEO counseling request which Complainant had previously attempted had not been received by the EEO office. Thereafter, on May 9, 2014, Complainant's attorney submitted a copy of an e-mail dated February 12, 2014, in which he stated was forwarded on behalf of his client to the EEO office requesting EEO counseling. A review of the February 12, 2014 email indicated that it was forwarded to an incorrect email address. Consequently, an EEO Counselor was assigned on May 13, 2014, and counseling continued until the Notice of Right to File a Discrimination Complaint was issued on June 6, 2014. The instant complaint was filed on June 24, 2014. In its final decision, the Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 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 record reflects that on January 9, 2014, Complainant received a letter from the Chief, Office of Finance informing her that effective close of business on January 10, 2014, she was being terminated during her probationary period. The January 9, 2014 letter also placed Complainant on notice that if she believed the termination was taken because of discrimination, she could file a discrimination complaint by calling the EEO office within 45 days of the effective date of the action. A telephone number was expressly provided for contact with the EEO office and/or for further information concerning the EEO complaint process. The record further reflects that neither Complainant nor her attorney telephoned the EEO office referenced above to initiate a request for counseling. Rather, Complainant's attorney drafted a letter dated February 12, 2014, and submitted it via email to what he determined belong to a named EEO officer. However, the February 12, 2014 letter was never received by the EEO Officer because the email address was incorrect, and apparently was transmitted to another Agency employee with the same first and last name. This error was not discovered until May 9, 2014, after Complainant's attorney made a telephone inquiry to the EEO office on May 6, 2014. It is undisputed that on January 9, 2014, Complainant was placed on notice that she would be terminated during her probationary period effective January 10, 2014, but she and her attorney did not further pursue this matter with the EEO office until May 6, 2014, which is beyond the forty-five day limitation period. The major issue is whether mistakenly sending the February 12, 2014 letter to the wrong email address for the EEO Officer constitutes valid EEO Counselor contact. However, despite this letter, which was issued prior to the expiration of the 45-day limitation period (on February 12, 2014), Complainant's attorney waited until May 6, 2014 to inquire about the status of Complainant's request for counseling. Complainant and her attorney have not provided an adequate explanation for why they did not promptly contact the EEO office at the telephone number provided in Complainant's January 9, 2014 termination letter. In summary, we determine that, 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). The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein 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 14, 2015 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "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. § 791", "29 U.S.C. §§ 791" ]	[ -0.07355976849794388, 0.08623408526182175, -0.03781576082110405, 0.012782561592757702, -0.005804154556244612, 0.04537876695394516, 0.05922020971775055, -0.0130869559943676, 0.00826929695904255, 0.04715108871459961, 0.059589579701423645, 0.0013982478994876146, -0.019469482824206352, -0.0056...
4	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520130622.txt	0520130622.txt	TXT	text/plain	18,188		July 10, 2013	Appeal Number: 0120131428 Background: On March 16, 2008, Complainant began working as a GS-6 Medical Support Assistant at the VA Medical Center in Portland, Oregon, under an "excepted appointment" that was not to exceed 13 months. During her employment, she complained several times to her first-level supervisor that a male janitor was harassing her.1 But when she contacted EEO counselors on February 26, 2009 and June 16, 2009, she did not raise this sexual harassment allegation to them. She instead alleged other discrimination claims. These other claims resulted in three formal EEO complaints, which the Agency investigated.2 During those investigations, Complainant mentioned the janitor's conduct while trying to prove elements of her other claims, such as whether she was an individual with a disability3 or whether her supervisor retaliated against her.4 But at no point did she request an EEO counselor or investigator to amend her complaints to include a sexual harassment claim involving the janitor. For example, in her July 9, 2009 affidavit to the EEO investigator in EEOC Appeal No. 0120101352, Complainant admitted that she did not file an EEO complaint about the janitor's sexual harassment: Q. Did you report [the janitor's sexual harassment] to the agency? A. Yes. Q. And what was done in response? A. Nothing. Q. Okay. However, you didn't file a complaint on that, I noticed. A. No, I never did file a sexual harassment complaint against this employee. Q. May I ask, why not? A. Because I was not aware until after my-my time there ended that nothing had been done or was not going to be done. I was under the impression it was being worked on. EEOC Appeal No. 0120101352 (Feb. 17, 2011), ROI, Complainant's Aff., Tab B1, at 7. I. Supervisory hostile work environment EEO complaint (Agency No. 200P-0648-2009103552) In EEOC Appeal No. 0120103710 (Mar. 14, 2011), Complainant alleged that her first-level supervisor subjected her to hostile work environment harassment based on disability and reprisal for prior EEO activity when: * In February 2009, the first-level supervisor refused to write a letter of reference for her; * on April 10, 2009, after Complainant told the first-level supervisor that she had filed an EEO complaint, the first-level supervisor became verbally abusive and vowed that Complainant would never work at the facility again; * on June 4, 2009, she was not selected for a Patient Service Assistant position; and * on June 23, 2009, the first-level supervisor gave Complainant a negative job reference. The Agency issued a final decision, finding no hostile work environment harassment on the bases of disability and reprisal. It did not address the janitor's harassment. Complainant appealed, arguing that she had raised a claim of harassment involving the janitor's conduct. Upon review, the Commission affirmed the Agency's final decision, finding no hostile work environment harassment on the bases of disability and reprisal. The Commission then determined, however, that Complainant had raised the janitor's harassment claim for the first time on appeal, and advised her to contact an EEO counselor. Complainant subsequently filed a civil action on June 1, 2011, regarding the matters adjudicated in EEOC Appeal No. 0120103710. In her civil action, Complainant attempted to raise the janitor's harassment claim, but the District Court dismissed this claim without prejudice for failing to exhaust her administrative remedies. See No. 3:11-CV-00671-HZ, 2012 WL 4508000 (D. Or. Sept. 28, 2012).5 II. Coworker sexual harassment EEO complaint (Agency No. 200P-0648-2013100589) On November 15, 2012, Complainant contacted an EEO counselor, and then filed the present formal EEO complaint (Agency No. 200P-0648-2013100589). A fair reading of her formal complaint and attachments indicate that she alleged hostile work environment harassment on the bases of sex (female) and reprisal for prior EEO activity when: 1. Beginning on March 18, 2008, and then on a daily basis, the janitor stared intensely at her crotch, rear end, and breasts; asked her if she had a boyfriend; and repeatedly asked her out hundreds of times, even though she repeatedly explained that she was not interested; 2. On April 18, 2008, the janitor told her she was pretty and wanted to go to the movies with her; 3. On May 1, 2008, the janitor asked her for a movie date with her and her daughter so they could have a "twosome;" 4. On June 15, 2008, the janitor told her that his girlfriend was fat and squishes him when she is on top, and he noticed that Complainant was thin; 5. On August 1, 2008, she began wearing a baggy, tan-colored sweater to hide her figure from the janitor. 6. On October 1, 2008, the janitor began having "trances," where he would stare at her rear-end and crotch area for up to 3 hours, touch her hair, told her that her hair was beautiful and looked like gold thread, actions which Complainant's supervisor dismissed as harmless; 7. On October 2, 2008, the janitor began putting his head under her desk to get her trash can, situating his head as close to her lap as possible and continued to ask her out; 8. In November 2008, the supervisor told her that the janitor had a disability and that she needed to tolerate his behavior if she wanted a permanent job; 9. On November 5, 2008, the janitor tried looking up her skirt when he put his head under her desk; 10. After she told the janitor to not worry about emptying her trash anymore, the supervisor ordered Complainant on November 7, 2008 to let the janitor empty her trash can, even if she had a patient at her desk or was on the phone. The janitor started to cuss at Complainant under his breath and became angry; 11. On January 3, 2009, the janitor began calling her when she floated to different sections, repeatedly asking her to like him since she was single and they could date; 12. On March 1, 2009, the janitor told her that she had to ride in the elevator with him, or else he would tell the supervisor that she was being mean to him again; 13. On March 30, 2009, the janitor tried to force his way on to the elevator with her, and she yelled at him that she would call the cops; 14. Because of the elevator incident, Complainant requested to be reassigned to the day shift, but on March 30, 2009, the supervisor refused Complainant's request; 15. On April 1, 2009, the janitor tried to hold hands with Complainant, tried to pull Complainant into a hospital room he had been cleaning, told her he loved her and wanted her to love him back and stop hating him. The Agency dismissed the complaint in its entirety, for failing to timely contact an EEO counselor on November 15, 2012. Complainant appealed. III. Previous Appellate Decision In EEOC Appeal No. 0120131428 (July 10, 2013), the Commission affirmed the Agency's dismissal of Complainant's formal complaint. The previous appellate decision found that Complainant's EEO counselor contact on November 15, 2012 was beyond the 45-day time limitation for complaining about harassing events involving the janitor that occurred in 2008 and 2009. The Commission determined that Complainant had waited over three years before contacting an EEO counselor, and found that the doctrine of laches may apply since Complainant failed to diligently pursue her claim. CONTENTIONS ON REQUEST FOR RECONSIDERATION Complainant contends that the previous decision clearly erred in dismissing her harassment complaint because it failed to consider the litigation history of her prior EEO complaints. Essentially, she argues that the Agency should have amended her prior EEO complaints, especially her prior hostile work environment complaint (Agency No. 200P-0648-2009103552), to include an allegation that she had been subjected to harassment by the janitor, since that claim was related to, and inexorably intertwined with, her prior EEO complaints. The reports of investigation for all three EEO complaints contain testimony from either Complainant or her supervisor about the janitor's harassment and the supervisor's remedial actions. Complainant further argues that her failure to timely contact an EEO counselor should be excused. According to Complainant, when she initially contacted an EEO counselor on February 26, 2009, she raised the janitor harassment claim to the counselor. But through a misunderstanding, she told the EEO counselor that she had already filed a "complaint" about the janitor's harassment, not realizing that there was a difference between informally complaining about harassment to her supervisor and filing a formal EEO complaint. She mistakenly thought that complaining to her supervisor was the first step in filing a harassment complaint against the janitor. She maintained this erroneous belief throughout the course of investigating her three EEO complaints, since she discussed aspects of the janitor's harassment to the EEO investigators, and they in turn questioned her supervisor about the harassment allegations. It was not until the Agency issued its final decisions did Complainant realize that the Agency would not be adjudicating her harassment claim involving the janitor's conduct. Complainant feels that the doctrine of laches should not apply since she has tried to diligently pursue her harassment claim as best she could as a pro se litigant, first by complaining to her supervisor multiple times, then by discussing the janitor's harassment during the course of all three prior EEO investigations. Once she realized that her harassment claim involving the janitor was not being adjudicated, she attempted to raise the claim, albeit in the wrong forums, at the appellate stage of the federal sector complaint process in EEOC Appeal No. 0120103710, in federal district court, and at the Occupational Safety and Health Administration. The Agency did not submit an opposition brief.	Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Request No. 0520130622 Appeal No. 0120131428 Agency No. 200P-0648-2013100589 DENIAL Complainant requested reconsideration of the decision in EEOC Appeal No. 0120131428 (July 10, 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). For the reasons that follow, Complainant's request is DENIED. BACKGROUND On March 16, 2008, Complainant began working as a GS-6 Medical Support Assistant at the VA Medical Center in Portland, Oregon, under an "excepted appointment" that was not to exceed 13 months. During her employment, she complained several times to her first-level supervisor that a male janitor was harassing her.1 But when she contacted EEO counselors on February 26, 2009 and June 16, 2009, she did not raise this sexual harassment allegation to them. She instead alleged other discrimination claims. These other claims resulted in three formal EEO complaints, which the Agency investigated.2 During those investigations, Complainant mentioned the janitor's conduct while trying to prove elements of her other claims, such as whether she was an individual with a disability3 or whether her supervisor retaliated against her.4 But at no point did she request an EEO counselor or investigator to amend her complaints to include a sexual harassment claim involving the janitor. For example, in her July 9, 2009 affidavit to the EEO investigator in EEOC Appeal No. 0120101352, Complainant admitted that she did not file an EEO complaint about the janitor's sexual harassment: Q. Did you report [the janitor's sexual harassment] to the agency? A. Yes. Q. And what was done in response? A. Nothing. Q. Okay. However, you didn't file a complaint on that, I noticed. A. No, I never did file a sexual harassment complaint against this employee. Q. May I ask, why not? A. Because I was not aware until after my-my time there ended that nothing had been done or was not going to be done. I was under the impression it was being worked on. EEOC Appeal No. 0120101352 (Feb. 17, 2011), ROI, Complainant's Aff., Tab B1, at 7. I. Supervisory hostile work environment EEO complaint (Agency No. 200P-0648-2009103552) In EEOC Appeal No. 0120103710 (Mar. 14, 2011), Complainant alleged that her first-level supervisor subjected her to hostile work environment harassment based on disability and reprisal for prior EEO activity when: * In February 2009, the first-level supervisor refused to write a letter of reference for her; * on April 10, 2009, after Complainant told the first-level supervisor that she had filed an EEO complaint, the first-level supervisor became verbally abusive and vowed that Complainant would never work at the facility again; * on June 4, 2009, she was not selected for a Patient Service Assistant position; and * on June 23, 2009, the first-level supervisor gave Complainant a negative job reference. The Agency issued a final decision, finding no hostile work environment harassment on the bases of disability and reprisal. It did not address the janitor's harassment. Complainant appealed, arguing that she had raised a claim of harassment involving the janitor's conduct. Upon review, the Commission affirmed the Agency's final decision, finding no hostile work environment harassment on the bases of disability and reprisal. The Commission then determined, however, that Complainant had raised the janitor's harassment claim for the first time on appeal, and advised her to contact an EEO counselor. Complainant subsequently filed a civil action on June 1, 2011, regarding the matters adjudicated in EEOC Appeal No. 0120103710. In her civil action, Complainant attempted to raise the janitor's harassment claim, but the District Court dismissed this claim without prejudice for failing to exhaust her administrative remedies. See No. 3:11-CV-00671-HZ, 2012 WL 4508000 (D. Or. Sept. 28, 2012).5 II. Coworker sexual harassment EEO complaint (Agency No. 200P-0648-2013100589) On November 15, 2012, Complainant contacted an EEO counselor, and then filed the present formal EEO complaint (Agency No. 200P-0648-2013100589). A fair reading of her formal complaint and attachments indicate that she alleged hostile work environment harassment on the bases of sex (female) and reprisal for prior EEO activity when: 1. Beginning on March 18, 2008, and then on a daily basis, the janitor stared intensely at her crotch, rear end, and breasts; asked her if she had a boyfriend; and repeatedly asked her out hundreds of times, even though she repeatedly explained that she was not interested; 2. On April 18, 2008, the janitor told her she was pretty and wanted to go to the movies with her; 3. On May 1, 2008, the janitor asked her for a movie date with her and her daughter so they could have a "twosome;" 4. On June 15, 2008, the janitor told her that his girlfriend was fat and squishes him when she is on top, and he noticed that Complainant was thin; 5. On August 1, 2008, she began wearing a baggy, tan-colored sweater to hide her figure from the janitor. 6. On October 1, 2008, the janitor began having "trances," where he would stare at her rear-end and crotch area for up to 3 hours, touch her hair, told her that her hair was beautiful and looked like gold thread, actions which Complainant's supervisor dismissed as harmless; 7. On October 2, 2008, the janitor began putting his head under her desk to get her trash can, situating his head as close to her lap as possible and continued to ask her out; 8. In November 2008, the supervisor told her that the janitor had a disability and that she needed to tolerate his behavior if she wanted a permanent job; 9. On November 5, 2008, the janitor tried looking up her skirt when he put his head under her desk; 10. After she told the janitor to not worry about emptying her trash anymore, the supervisor ordered Complainant on November 7, 2008 to let the janitor empty her trash can, even if she had a patient at her desk or was on the phone. The janitor started to cuss at Complainant under his breath and became angry; 11. On January 3, 2009, the janitor began calling her when she floated to different sections, repeatedly asking her to like him since she was single and they could date; 12. On March 1, 2009, the janitor told her that she had to ride in the elevator with him, or else he would tell the supervisor that she was being mean to him again; 13. On March 30, 2009, the janitor tried to force his way on to the elevator with her, and she yelled at him that she would call the cops; 14. Because of the elevator incident, Complainant requested to be reassigned to the day shift, but on March 30, 2009, the supervisor refused Complainant's request; 15. On April 1, 2009, the janitor tried to hold hands with Complainant, tried to pull Complainant into a hospital room he had been cleaning, told her he loved her and wanted her to love him back and stop hating him. The Agency dismissed the complaint in its entirety, for failing to timely contact an EEO counselor on November 15, 2012. Complainant appealed. III. Previous Appellate Decision In EEOC Appeal No. 0120131428 (July 10, 2013), the Commission affirmed the Agency's dismissal of Complainant's formal complaint. The previous appellate decision found that Complainant's EEO counselor contact on November 15, 2012 was beyond the 45-day time limitation for complaining about harassing events involving the janitor that occurred in 2008 and 2009. The Commission determined that Complainant had waited over three years before contacting an EEO counselor, and found that the doctrine of laches may apply since Complainant failed to diligently pursue her claim. CONTENTIONS ON REQUEST FOR RECONSIDERATION Complainant contends that the previous decision clearly erred in dismissing her harassment complaint because it failed to consider the litigation history of her prior EEO complaints. Essentially, she argues that the Agency should have amended her prior EEO complaints, especially her prior hostile work environment complaint (Agency No. 200P-0648-2009103552), to include an allegation that she had been subjected to harassment by the janitor, since that claim was related to, and inexorably intertwined with, her prior EEO complaints. The reports of investigation for all three EEO complaints contain testimony from either Complainant or her supervisor about the janitor's harassment and the supervisor's remedial actions. Complainant further argues that her failure to timely contact an EEO counselor should be excused. According to Complainant, when she initially contacted an EEO counselor on February 26, 2009, she raised the janitor harassment claim to the counselor. But through a misunderstanding, she told the EEO counselor that she had already filed a "complaint" about the janitor's harassment, not realizing that there was a difference between informally complaining about harassment to her supervisor and filing a formal EEO complaint. She mistakenly thought that complaining to her supervisor was the first step in filing a harassment complaint against the janitor. She maintained this erroneous belief throughout the course of investigating her three EEO complaints, since she discussed aspects of the janitor's harassment to the EEO investigators, and they in turn questioned her supervisor about the harassment allegations. It was not until the Agency issued its final decisions did Complainant realize that the Agency would not be adjudicating her harassment claim involving the janitor's conduct. Complainant feels that the doctrine of laches should not apply since she has tried to diligently pursue her harassment claim as best she could as a pro se litigant, first by complaining to her supervisor multiple times, then by discussing the janitor's harassment during the course of all three prior EEO investigations. Once she realized that her harassment claim involving the janitor was not being adjudicated, she attempted to raise the claim, albeit in the wrong forums, at the appellate stage of the federal sector complaint process in EEOC Appeal No. 0120103710, in federal district court, and at the Occupational Safety and Health Administration. The Agency did not submit an opposition brief. ANALYSIS 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. EEOC Regulation 29 C.F.R. §1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The 45-day time frame can be extended under certain grounds: * Equitable tolling: the complainant was understandably unaware of the EEO process or of important facts that should have led her to suspect discrimination; * Equitable estoppel: the complainant's delayed filing was attributable to active misconduct by the agency intended to prevent timely filing, or actions that an employer should have known would cause a delay in filing; * Waiver: the parties mutually agreed to waive the time requirements. Upon review, we find that Complainant had ample notice and opportunity to take some sort of affirmative or independent step to raise her sexual harassment claim by the janitor during the investigation of her pending EEO complaints, but that she failed to do so. All of the EEO counselor reports clearly documented and defined the claims that would make up each EEO complaint, and none contained the claims involving the janitor. At no point did Complainant request that the EEO counselor or investigator include a sexual harassment claim. And even though her testimony in the three EEO complaints did mention in some respect the janitor's conduct, they were done in the service of proving elements of her other claims, such as whether she was an individual with a disability or whether her supervisor retaliated against her. Complainant's acknowledgement in her July 9, 2009 affidavit that she had failed to file an EEO complaint about the janitor's sexual harassment establishes that by July 2009, Complainant knew that she needed to file a separate sexual harassment complaint, but she failed to do so until November 15, 2012. Therefore, we are not persuaded by Complainant's contention on request for reconsideration that she did not realize until the Agency issued its final agency decision that her sexual harassment claim would not be adjudicated. Complainant has not shown that she was unaware of the EEO process during her employment with the Agency, or when the Agency was investigating her three pending EEO complaints about other issues, or that the Agency actively misled her in delaying EEO counselor contact. Therefore, we find that the previous decision did not clearly err in determining that there were no grounds to extend the time frame for contacting an EEO counselor, thereby dismissing Complainant's sexual harassment complaint for untimely EEO counselor contact. The decision in EEOC Appeal No. 0120131428 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 (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 __5/23/14________________ Date 1 EEOC Appeal No. 0120101352 (Feb. 17, 2011), Report of Investigation (ROI), Tab B-5, at 1-2. 2 Agency Nos. 200P-0648-2009101907, 200P-629D-2009103136, and 200P-0648-2009103552. 3 Complainant testified in a July 9, 2009 affidavit that she was a person with a disability, because a male janitor had stalked her at work, created a stressful environment, exacerbated her pre-existing Post Traumatic Stress Disorder, and thereby negatively affected her ability to do her job. EEOC Appeal No. 0120101352 (Feb. 17, 2011), Report of Investigation (ROI), Complainant's Affidavit (Aff.), Tab B1, at 7. 4 In describing the first-level supervisor's abusive behavior towards her, Complainant averred: "[The supervisor] and I got along just fine except . . . when I complained to her regarding a janitor that was having a crush on me. [The supervisor] was upset because she didn't want to deal with the problem." EEOC Appeal No. 0120103710 (Mar. 14, 2011), Report of Investigation (ROI), Complainant's Aff., Tab B1, Question 65. According to Complainant, the supervisor did not begin to yell at her until "the day I complained about a janitor . . . hitting on me at work and following me." Id. at Question 53. 5 We note that on October 15, 2012, Complainant attempted to raise this harassment claim in another forum, by filing a safety and health complaint with the Occupational Safety and Health Administration (OSHA). She alleged that the male janitor had harassed up to 70 female employees. OSHA inspected the workplace, and reported on January 22, 2013 that employees had been exposed to hazardous conditions associated with workplace violence. OSHA found that several employees had acknowledged situations or conditions that they identified . . . to be a form of harassment or workplace violence but did not report them to management. OSHA declined to issue a citation for the presence of workplace violence risk, but it recommended that the Agency should voluntarily take necessary steps to eliminate or materially reduce the employees' exposure to this risk factor. ------------------------------------------------------------ ------------------------------------------------------------	[ "29 C.F.R. § 1614.405(c)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.05418834090232849, 0.12552841007709503, 0.04252838343381882, 0.00046781430137343705, -0.02406315505504608, 0.01874498277902603, -0.005490696988999844, 0.013741157948970795, 0.00905159767717123, 0.03715275973081589, 0.03469378501176834, 0.007703999988734722, -0.0193366389721632, 0.004257...
5	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A41505_r.txt	01A41505_r.txt	TXT	text/plain	7,819	Tony C. White v. Department of Veterans Affairs 01A41505 April 26, 2004 . Tony C. White, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.	April 26, 2004	Appeal Number: 01A41505 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated December 30, 2003, 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. On September 5, 2003, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. In his formal complaint, filed on October 8, 2003, complainant alleged that he was subjected to discrimination on the basis of race when on March 31, 2003, he was issued a letter stating he would be removed from federal service effective April 11, 2003. The agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The agency also dismissed the complaint on the alternative grounds for failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). The record in this case contains the EEO Counselor's Report wherein it indicates that when requested to provide an explanation for not contacting an EEO Counselor until September 5, 2003, complainant stated that he did not know that he could file an EEO complaint until he was told by the union in August 2003. The record further shows that when the Counselor inquired of complainant if he had attended any EEO training during his six years as an agency employee, complainant stated he had not attend any EEO training. The record, however, also contains the statement of an EEO Program Manager. Therein, the EEO Program Manager stated that since her arrival to the agency's Dayton Veterans Affairs Medical Center on October 6, 2002, she has conducted Prevention of Sexual Harassment, EEO Process, Alternative Dispute Resolution and Diversity training for all employees. The Program Manager further stated that [W] ithin the trainings given I continually stress the time frames required when filing an EEO complaint . . . Further, the EEO Program Manager indicated that the matrix of the EEO process with the appropriate phone numbers on the official EEO Board were on display. Finally, the record contains a copy of complainant's training history, indicating that he underwent a mandatory sexual harassment training session on March 18, 2003. 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 notes that the alleged discriminatory event (removal notification) was effective April 2003, but that complainant did not contact an EEO Counselor until September 5, 2003, which is beyond the forty-five-day limitation period. We note that the record contains a copy of complainant's training report wherein it shows that complainant attended Sexual Harassment Mandatory Training on March 18, 2003, prior to the alleged discriminatory event. We have considered this evidence in conjunction with the statement of the agency EEO Program Manager who stated that she continually addresses the limitation periods in the EEO complaint process in her training sessions, as well as the EEO Program Manager's statement that the EEO process was on display on the official EEO Board. We determine that complainant had constructive knowledge of his EEO rights and EEO applicable time limits. Therefore, we find that the agency properly dismissed the complaint for untimely Counselor contact.<1> Final Decision: Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.	Tony C. White v. Department of Veterans Affairs 01A41505 April 26, 2004 . Tony C. White, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A41505 Agency No. 2000J-0552-2003104308 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated December 30, 2003, 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. On September 5, 2003, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. In his formal complaint, filed on October 8, 2003, complainant alleged that he was subjected to discrimination on the basis of race when on March 31, 2003, he was issued a letter stating he would be removed from federal service effective April 11, 2003. The agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The agency also dismissed the complaint on the alternative grounds for failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). The record in this case contains the EEO Counselor's Report wherein it indicates that when requested to provide an explanation for not contacting an EEO Counselor until September 5, 2003, complainant stated that he did not know that he could file an EEO complaint until he was told by the union in August 2003. The record further shows that when the Counselor inquired of complainant if he had attended any EEO training during his six years as an agency employee, complainant stated he had not attend any EEO training. The record, however, also contains the statement of an EEO Program Manager. Therein, the EEO Program Manager stated that since her arrival to the agency's Dayton Veterans Affairs Medical Center on October 6, 2002, she has conducted Prevention of Sexual Harassment, EEO Process, Alternative Dispute Resolution and Diversity training for all employees. The Program Manager further stated that [W] ithin the trainings given I continually stress the time frames required when filing an EEO complaint . . . Further, the EEO Program Manager indicated that the matrix of the EEO process with the appropriate phone numbers on the official EEO Board were on display. Finally, the record contains a copy of complainant's training history, indicating that he underwent a mandatory sexual harassment training session on March 18, 2003. 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 notes that the alleged discriminatory event (removal notification) was effective April 2003, but that complainant did not contact an EEO Counselor until September 5, 2003, which is beyond the forty-five-day limitation period. We note that the record contains a copy of complainant's training report wherein it shows that complainant attended Sexual Harassment Mandatory Training on March 18, 2003, prior to the alleged discriminatory event. We have considered this evidence in conjunction with the statement of the agency EEO Program Manager who stated that she continually addresses the limitation periods in the EEO complaint process in her training sessions, as well as the EEO Program Manager's statement that the EEO process was on display on the official EEO Board. We determine that complainant had constructive knowledge of his EEO rights and EEO applicable time limits. Therefore, we find that the agency properly dismissed the complaint for untimely Counselor contact.<1> Accordingly, the agency's decision to dismiss 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 (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 26, 2004 __________________ Date 1Because we are affirming the agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), we will not address the agency's alternative grounds for dismissal.	[ "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" ]	[ -0.07978852838277817, 0.11484857648611069, -0.0014093690551817417, 0.03976578265428543, 0.010122518986463547, 0.06969617307186127, 0.026391861960291862, -0.011506132781505585, -0.021276632323861122, 0.0020557057578116655, -0.000041784711356740445, 0.014169566333293915, -0.027255382388830185,...
6	https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019001915.pdf	2019001915.pdf	PDF	application/pdf	28,176	Mitzie W.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	December 7, 2018	Appeal Number: 2019001915 Background: At the time of events giving rise to this complaint , Complainant was a Civil Service Mariner (CIVMAR) employed with the Military Sealift Command (MSC) as an Assistant Storekeeper , WM-9994- 15, aboard the U.S. Navy Ship (USNS) Wally Schirra of the Norfolk Naval Base in Virginia . On November 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of r eprisal (prior protected EEO activity ) when her second - level (S2) and fourth- level (CPT) supervisors changed her performance evaluation from “Outstanding” to “ Excellent ” after she complained to them about an Abled Bodied Seaman (AB) stalking and harassing her, and of him breaking into her state room several times beginning on February 21, 2017, while she was asleep onboard ship After the concl usion 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 E EOC Administrative Judge. When Complainant did not request a hearing within the time frame provi ded in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Legal Analysis: the Commission REVERSES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint , Complainant was a Civil Service Mariner (CIVMAR) employed with the Military Sealift Command (MSC) as an Assistant Storekeeper , WM-9994- 15, aboard the U.S. Navy Ship (USNS) Wally Schirra of the Norfolk Naval Base in Virginia . On November 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of r eprisal (prior protected EEO activity ) when her second - level (S2) and fourth- level (CPT) supervisors changed her performance evaluation from “Outstanding” to “ Excellent ” after she complained to them about an Abled Bodied Seaman (AB) stalking and harassing her, and of him breaking into her state room several times beginning on February 21, 2017, while she was asleep onboard ship After the concl usion 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 E EOC Administrative Judge. When Complainant did not request a hearing within the time frame provi ded in 29 C.F.R. § 1614.108(f), 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 her to reprisal as alleged. FACTUAL BACKGROUND The Agency acknowledged that Complainant has filed eight EEO complaints alleging reprisal since 2011. Additionally , the Agency’s acknowledge d that Complainant engaged in protected activity when she reported her allegations of harassment against AB in April and May 2017. S2 testified that he was in the room (as “ a listener ”) when Complainant raised this harassment complaint to the Captain (C PT). The record reflects that on March 24, 2017, Complainant received a rating of “Outstanding ” on a special performance evaluation for the period December 11, 2016 through March 24, 2017 (EVAL 1). S2 signed the evaluation and commented as follows: This is a special evaluation for [Complainant] under my supervision between 12/11/2016 - 03/24/2017 while deployed 7 th fleet onboard USNS WALLY SCHIRRA. Assigned for a short duration as COSAL Storekeeper, she performed her duties and responsibilities in issuing, receiving, inventorying, stowing, organizing and processing receipts of incoming and outgoing materials with g ood results. Admittedly, working in Supply Support Office for the first time, [Complainant] demonstrated affable personality and great enthusiasm in providing Customer Service daily. Assigned as Govt Purchase Card (GPC) storekeeper, she performed the position ably with modest supervision. Accomplishments: - Processed GPC material requests and monthly GPC reconciliation in a timely manner with minimal supervision - Volunteered as Ship's NEX Operator, she took over the operation with significant interes t and enormous fashion to provide Mariners with excellent service daily. Without regard for assistance, she processed ordering, receipt accounting, merchandise organizing and stowing independently. - Teamplayer, she avail ed to assist and processed other re quirement in Travel, Port Services, ShipClip Program processing and COSAL research fairly well to contribute, in particular, to the overall success of Supply Support Office administration. With progressive training, hands -on experience and pursuit for acc omplishments, [Complainant’s] potential to achieve is an indicative of an excellent Storekeeper. [Complainant’s] strong motivation for knowledge in Supply Logistics Operations and willingness to accept higher responsibilities, is therefore recommended for advancement to YNSK2 on the next available opportunity. On June 6, 2017, C omplainant received a rating of “Excellent ” on a separate detachment performance evaluation for the period December 11, 2016 through June 6, 2017 (EVAL 2) . S2’s comments in EVAL 2 are as follows: [Complainant] was assigned to Cargo Supply when she reported on board Wally Schirra. Tasks that are routinely assigned to [Complainant] during her tour aboard the Wally Schirra was a Basic Storekeeper and She is not ready for higher responsibility as of yet, [Complainant] is still on the learning stage. During in port cargo replenishment, she is one that is assign of identifying each type of cargo commodity and ensuring that sticking color code and commodity labels f or each ship are correct while counting the pallets. Conduct different types of inventory for Cargo and End- Use, Process material receipts, physically receive, segregate, stow cargo in locations, break- out cargo requirements for issue to customers with extreme supervision. [Complainant] is slow learner and doesn't know how to create a shipping document (DD1149), She shows nothing but a negative attitude rudeness and don't even recognize the Supply Officer at work, She's the type of person who does what she wants and spend more time on her room than working spaces and threats the supervisor of EEO. But there is one thing she's good at; She Volunteered to manage the Ship Store aboard Wally Schirra. H ighly recommended to attend more Storekeeper Training Schools. [emphasis added] S2 testifie d that EVAL 1 was created as a favor to Complainant to help her get promoted to Yeoman Storekeeper and to help motivate her to improve. However, S1 assert ed that EVAL 2’s comments were “exactly who she is from day one.” S2 stated that EVAL 2 reflect s the true state of Complainant’s performance and denie d that EVAL 2 was motivated by retaliatory animus. Complainant’s first- line supervisor (S1) corroborated this assessment. S2 also testified as to why he mentioned threats of EEO in his comments in EVAL 2 as follows: When I show her this eval, she refused to sign her evaluation. And threatened me with an EEO and all of that, you know. I have to go EEO on this, blah- blah- blah. That's the reason why I put it on this, you know, on the evaluation comments that I am being threatened by EEO because a lot of the employees, I don't know, 2 YNSK refers to Yeoman Storekeeper . 3 At some unknown point after issuance of EVAL 2 , management asked the Career Advancement Specialist to delete the reference to threats of EEO in EVAL 2 .	Mitzie W.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2019001915 Agency No. 176238102782 DECISION On December 7, 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 November 7, 2018 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. For the following reasons, the Commission REVERSES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint , Complainant was a Civil Service Mariner (CIVMAR) employed with the Military Sealift Command (MSC) as an Assistant Storekeeper , WM-9994- 15, aboard the U.S. Navy Ship (USNS) Wally Schirra of the Norfolk Naval Base in Virginia . On November 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of r eprisal (prior protected EEO activity ) when her second - level (S2) and fourth- level (CPT) supervisors changed her performance evaluation from “Outstanding” to “ Excellent ” after she complained to them about an Abled Bodied Seaman (AB) stalking and harassing her, and of him breaking into her state room several times beginning on February 21, 2017, while she was asleep onboard ship After the concl usion 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 E EOC Administrative Judge. When Complainant did not request a hearing within the time frame provi ded in 29 C.F.R. § 1614.108(f), 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 her to reprisal as alleged. FACTUAL BACKGROUND The Agency acknowledged that Complainant has filed eight EEO complaints alleging reprisal since 2011. Additionally , the Agency’s acknowledge d that Complainant engaged in protected activity when she reported her allegations of harassment against AB in April and May 2017. S2 testified that he was in the room (as “ a listener ”) when Complainant raised this harassment complaint to the Captain (C PT). The record reflects that on March 24, 2017, Complainant received a rating of “Outstanding ” on a special performance evaluation for the period December 11, 2016 through March 24, 2017 (EVAL 1). S2 signed the evaluation and commented as follows: This is a special evaluation for [Complainant] under my supervision between 12/11/2016 - 03/24/2017 while deployed 7 th fleet onboard USNS WALLY SCHIRRA. Assigned for a short duration as COSAL Storekeeper, she performed her duties and responsibilities in issuing, receiving, inventorying, stowing, organizing and processing receipts of incoming and outgoing materials with g ood results. Admittedly, working in Supply Support Office for the first time, [Complainant] demonstrated affable personality and great enthusiasm in providing Customer Service daily. Assigned as Govt Purchase Card (GPC) storekeeper, she performed the position ably with modest supervision. Accomplishments: - Processed GPC material requests and monthly GPC reconciliation in a timely manner with minimal supervision - Volunteered as Ship's NEX Operator, she took over the operation with significant interes t and enormous fashion to provide Mariners with excellent service daily. Without regard for assistance, she processed ordering, receipt accounting, merchandise organizing and stowing independently. - Teamplayer, she avail ed to assist and processed other re quirement in Travel, Port Services, ShipClip Program processing and COSAL research fairly well to contribute, in particular, to the overall success of Supply Support Office administration. With progressive training, hands -on experience and pursuit for acc omplishments, [Complainant’s] potential to achieve is an indicative of an excellent Storekeeper. [Complainant’s] strong motivation for knowledge in Supply Logistics Operations and willingness to accept higher responsibilities, is therefore recommended for advancement to YNSK2 on the next available opportunity. On June 6, 2017, C omplainant received a rating of “Excellent ” on a separate detachment performance evaluation for the period December 11, 2016 through June 6, 2017 (EVAL 2) . S2’s comments in EVAL 2 are as follows: [Complainant] was assigned to Cargo Supply when she reported on board Wally Schirra. Tasks that are routinely assigned to [Complainant] during her tour aboard the Wally Schirra was a Basic Storekeeper and She is not ready for higher responsibility as of yet, [Complainant] is still on the learning stage. During in port cargo replenishment, she is one that is assign of identifying each type of cargo commodity and ensuring that sticking color code and commodity labels f or each ship are correct while counting the pallets. Conduct different types of inventory for Cargo and End- Use, Process material receipts, physically receive, segregate, stow cargo in locations, break- out cargo requirements for issue to customers with extreme supervision. [Complainant] is slow learner and doesn't know how to create a shipping document (DD1149), She shows nothing but a negative attitude rudeness and don't even recognize the Supply Officer at work, She's the type of person who does what she wants and spend more time on her room than working spaces and threats the supervisor of EEO. But there is one thing she's good at; She Volunteered to manage the Ship Store aboard Wally Schirra. H ighly recommended to attend more Storekeeper Training Schools. [emphasis added] S2 testifie d that EVAL 1 was created as a favor to Complainant to help her get promoted to Yeoman Storekeeper and to help motivate her to improve. However, S1 assert ed that EVAL 2’s comments were “exactly who she is from day one.” S2 stated that EVAL 2 reflect s the true state of Complainant’s performance and denie d that EVAL 2 was motivated by retaliatory animus. Complainant’s first- line supervisor (S1) corroborated this assessment. S2 also testified as to why he mentioned threats of EEO in his comments in EVAL 2 as follows: When I show her this eval, she refused to sign her evaluation. And threatened me with an EEO and all of that, you know. I have to go EEO on this, blah- blah- blah. That's the reason why I put it on this, you know, on the evaluation comments that I am being threatened by EEO because a lot of the employees, I don't know, 2 YNSK refers to Yeoman Storekeeper . 3 At some unknown point after issuance of EVAL 2 , management asked the Career Advancement Specialist to delete the reference to threats of EEO in EVAL 2 . Accordingly, the official copy in Complainant’s personnel file no longer contains this reference. However, Complainant has retained the original copy with the EEO reference that she received. somewhere along the lines they always use the EEO as a shield. Okay. They always use EEO as a shield. I will report to EEO. I will report to EEO. That's all you been hearing from all these employees. Being a department head, you know, we are being threatened a lot of EEOs on board the ship. Oh, I'm going to report them to EEO. And, you know, that -- that's getting old, and I just don't know why are they using the EEO as a shield and threat left and right for EEO, EEO. It's always an EEO. S2 further testified that he wrote in the comment about EEO because Complainant threatened him with EEO . S2 testified as follows: When I did this evaluation, the detachment evaluation I -- yeah. I wrote in after -- that's what I said. After that she's been threatening me as an EEO. That's the reason I put it right her e, but that's what was spent more time blah-blah-blah-blah-blah, and then threatens the supervisor of the EEO. S2’s provide d additional information regarding his view of Complainant’s protected EEO activity. [EEO Investigator: ] How often did the complainant complain to you or threaten you about going to or filing an EEO claim while she worked for you? [S2:] She -- she only did it one time of me when she saw this evaluation, but she always tells everybody on board the ship that she's going to put me on EEO, report supply officer EEO, report the junior supply officer EEO. You know, she talks to everybody on board the ship and letting everyone in supply, just threatening junior supply officer4, myself as a supply officer, threatening as an EEO repor t. [EEO Investigator:] Okay. And so is that why you placed that on her performance evaluation? [S2:] Okay. The reason why I placed it or write this on the evaluation and comments here is to let the people there in the office and the EEO and -- I was really hoping that they see this one so they can know or they will learn that a lot of employees on board the ship out there in the ocean, that a lot of employees -- that's what I did -- is using the EEO as their shield. Okay. They're using it as a shield. EEO and EEO and EEO. And we just don't know why are these people doing that, you know. Why are these employees doing that to their department head or to their junior supply officer who are being threatened with EEO a lot of times? ….. So, I just want to let you guys know that a lot of people are using all of this – you know, these stories, unbelievable stories just to make some money from the government. 4 S1 is the Junior Supply Officer. Even this [Complainant] , she was talking around the ship on board the ship that she is going to sue the government to make some money, then get out from MSC. Okay. Talking about that may be hearsay from my side because she didn't directly tell me that, but she was telling her coworkers and I just heard it from another coworker, just to l et you guys know. The undisputed record shows that Complainant was never counseled about her performance prior to the issuance of EVAL 2. T he record contains a letter of counseling dated April 14, 2017 for reporting late to muster on two occasions. However, S2 does not mention this letter of counseling as a basis for his comments in EVAL 2. 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 t o 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 documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . iss ue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment. Individuals rely on the statutory prohibitions against retaliation , also known as “reprisal,” when they complain to an employer about an alleged EEO violation, provide information as a witness in a company or agency investigation, or file a charge or complaint with the E EOC . Retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in acti vity in furtherance of the EEO laws the Commission enforces . See EEOC Enforcement Guidance on Retaliation and Related Issues , EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army , EEOC Request No. 05970939 (Apr . 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation . Retaliation Guidance, (Aug . 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity . Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). In this case, Complainant engaged in EEO protected activity when she repor ted allegations of harassment against AB in April and May 2017 to CPT who advised Complainant to report it to EEO. The record also establishes that S2 believed Complainant intended to file EEO complaints against her supervisors. In addition, the record shows that S2 directly references Complainant's EEO activity as part of his negative commentary in EVAL 2. We find that citing Complainant’s protected EEO activity in her performance review is direct evidence of reprisal . Direct evidence of a retaliatory motive is any written or verbal statement by an Agency official that he or she undertook the challenged action because the employee engaged in protected activity. Such evidence also includes a written or oral statement by an Agency official that on its face demonstrates a bias toward the employee based on his or her protected activity, along with evidence linking that bias to the adverse action. Feder v. Dep ’t of Justice EEOC Appeal No. 0720110014 (July 19, 2012), req. for recon. den'd, EEOC Request No. 0520130004 (May 14, 2013); Rigoberto A. v. Evtl. Prot. Agency, EEOC Appeal No. 0120180363 (Sept. 17, 2019) . S2 clearly demonstrate d bias toward Complainant based on her protected activity by linking it to her negative performance rating as one of several performance defici encies . A ccordingly, such linkage is reasonably likely to deter Complainant and other employees from engaging in the EEO process. In addition to direct evidence of retaliatory animus as the motivating factor in the issuance of EVAL 2, the record also contai ns evidence of legitimate, non-retaliatory reasons . Cases such as this, where there is evidence that retaliation was one of multiple motivating factors for an employment action, that is, the employer acted on the bases of both lawful and unlawful reasons, are known as “mixed motive” cases. Once a complainant demonstrates that discrimination /retaliation was a motivating factor in the employer's action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have made the same decision, even if it had not considered the discriminatory /retaliatory factor. See Price Waterhouse v. Hopki ns, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep't of the Army , EEOC Request No. 05A41133 (Mar. 18, 2005). If the employer can make this demonstration, the complainant is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, back pay. But the complainant may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). To avoid an order requiring reinstatement and the payment of ba ck pay and damages, the employer must offer objective evidence that it would have made the same decision even absent the discrimination . In making this showing, the employer must produce proof of a legitimate reason for the action that actually motivated it at the 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 independently have produced the same result, would not be sufficient. The employ er must prove “that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same action.” Price Waterhouse , 490 U.S. at 276- 77 (O'Connor, J., concurring) ; Feder v. D ep’t of Justice , EEOC Appeal No. 0720110014 (July 19, 2012) . We find that the Agency failed to meet its burden of producing objective evidence and in establishing clear and convincing evidence that it would have taken the same action even if it had not considered the retaliatory fact or. We do not find credible management’s assertion that it viewed Complainant as a poor performer since day one, but nevertheless chose to issue her a special “Outstanding ” performance rating with false statements about her performance t o help her get promoted and motivate her to achieve. This is especial ly incredible given the fact that the record is devoid of documentary evidence to support management’s assertion that her performance was poor and S2 testified that Complainant was never counseled regarding her alleged poor performance. In addition, S2’s testimony reflects his deep disdain for Complainant’s participation in protected EEO activity. See Yahya S. Mahran v. Dep’t of Agric ., EEOC Appeal No. 05940973 (June 20, 1996) . We find that management’s mere assertion of a legitimate motive is not sufficient to meet its burden of proof. CONCLUSION Accordingly, b ased on a thorough review of the record we REVERSE the Agency’s final decision and find that Complainant has established unlawful reprisal as alleged. We REMAND the matter to the Agency for compliance with the remedies specified in the ORDER herein. ORDER The Agency is ORDERED to take the following remedial action : 1. Within sixty (60) calendar days of the date this decision is issued , the Agency shall separate and expunge EVAL 2 from the C omplainant's personnel file and any other centralized location other than its legal files pertaining to this case, and any , and all documents which incorporate or refer to EVAL 2 . In its place in the A gency records the following words shall be inserted: “Because a detachment evaluation ending on June 6, 2017 was not performed, the special evaluation issued on March 24, 2017 shall take its place .” 2. Within ninety (90) days of the da te this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages, if any; and attorney's fees and costs, if any. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim, and attorney's fees and costs. See Carle v. Dep't of the Navy , EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages, and attorney's fees and costs (if applicable) no later than thirty (30) days after the completion of the investigation. 3. Within ninety (90) calendar days of the date this decision is issued , the Agency shall provide the management official identified as S2 , sixteen ( 16) hours of in- person or interactive EEO training, with a special emphasis on reprisal. 4. Within sixty (60) calendar days of the date this decision is issued, the Agency shall consider whether disciplinary action against S2 is appropriate. The A gency shall record the basis for its decision to take or not to take such action and report the same to the Commission in the same manner that the implementation of the rest of the order is repor ted. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at the USNS WALLY SCHIRRA facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency with in 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 requ ired 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 Commiss ion’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. Failure by an agency to either file a compliance report or implement an y 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 cl early 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 wit h 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, E qual 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 Por tal (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 extenuat ing 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) 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 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 t o 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 11, 2020 Date	[ "Carroll v. Dep't of the Army , EEOC Request No. 05970939 (Apr . 4, 2000)", "Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)", "Rigoberto A. v. Evtl. Prot. Agency, EEOC Appeal No. 0120180363 (Sept. 17, 2019)", "Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999)", "Fe...	[ -0.11399071663618088, 0.06253351271152496, -0.013433132320642471, 0.03610319644212723, 0.03981555625796318, 0.039036281406879425, -0.006003625225275755, 0.0002106283645844087, -0.050897590816020966, 0.04340813308954239, 0.04920056834816933, -0.044934362173080444, 0.01117712538689375, 0.002...
7	https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020004188.pdf	2020004188.pdf	PDF	application/pdf	17,477	Ivan V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.	July 15, 2020	Appeal Number: 2020004188 Background: At the time of events giving rise to this complaint, Complainant worked w as employed as a Cemetery Caretaker Supervisor at Culpeper National Cemetery in Culpeper, Virginia. On April 20, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on his race (African -Amer ican) and reprisal for prior protected EEO activity when: 1. For more than a year prior and through January 31, 2020, on approximately a weekly basis he was subjected to unreasonable assignments, derogatory comments, yelling, and threats of termination . 2. He was terminated from employment effective January 31, 2020. The Agency dismissed the entire complaint under 29 C.F.R. § 1614.107(a)(2) , reasoning Complainant did not bring these matters to the attention of an EEO counselor . While the record reflects th at Complainant’s attorney initiated EEO counseling on behalf of Complainant on March 6, 2020, the Agency found that no counseling occurred. It recounted that the EEO counselor followed up with Complainant and his attorney on March 17 and March 31, 2020, by calling and emailing both of them on both these dates, but neither got back to the counselor. The Agency also dismissed issue 2 because on March 2, 2020, Complainant appealed h is removal to the Merit Systems Protection Board (MSPB) . The Agency found t hat because Complainant filed his EEO complaint after filing his appeal with the MSPB on the same matter , this constituted an election of the MSPB forum under 29 C.F.R. § 1614.107(a)( 4) & .302(b) on issue 2. The instant appeal followed. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that a claim is subject to dismissal where a complainant raises a matter in his EEO complaint that has not been brought to the attention of a n EEO c ounselor and is not like or related to a matter that has been brought to the attention of a n EEO counselor . Based on the record before us, we are unable to determine if Complainant’s attorney, on behalf of his client, raised issue 1 with the EEO counselor on March 6, 2020. Further, while the removal decision reflected the charges against Complainant, it contained none of the facts or specifications that gave rise to them. Without this information, which most likely is in the proposed removal, and more information on the specifics of issue 1, we are unable to discern , assuming Complainant’s counsel did not raise issue 1 with the EEO counselor, whether it is like or related to issue 2 . Final Decision: Accordingly, the FAD is REVERSED.	Ivan V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2020004188 Agency No. 2004-0839-2020102772 DECISION On July 15, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 10, 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 At the time of events giving rise to this complaint, Complainant worked w as employed as a Cemetery Caretaker Supervisor at Culpeper National Cemetery in Culpeper, Virginia. On April 20, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on his race (African -Amer ican) and reprisal for prior protected EEO activity when: 1. For more than a year prior and through January 31, 2020, on approximately a weekly basis he was subjected to unreasonable assignments, derogatory comments, yelling, and threats of termination . 2. He was terminated from employment effective January 31, 2020. The Agency dismissed the entire complaint under 29 C.F.R. § 1614.107(a)(2) , reasoning Complainant did not bring these matters to the attention of an EEO counselor . While the record reflects th at Complainant’s attorney initiated EEO counseling on behalf of Complainant on March 6, 2020, the Agency found that no counseling occurred. It recounted that the EEO counselor followed up with Complainant and his attorney on March 17 and March 31, 2020, by calling and emailing both of them on both these dates, but neither got back to the counselor. The Agency also dismissed issue 2 because on March 2, 2020, Complainant appealed h is removal to the Merit Systems Protection Board (MSPB) . The Agency found t hat because Complainant filed his EEO complaint after filing his appeal with the MSPB on the same matter , this constituted an election of the MSPB forum under 29 C.F.R. § 1614.107(a)( 4) & .302(b) on issue 2. The instant appeal followed. ANALYSIS AND FINDINGS Issue 2 On January 29, 2020, the Agency issued Complainant a decision to remove him effective January 31, 2020, for failure to follow instructions and inappropriate conduct. Therein , the Agency notified him that if he believed this action was ba sed on protected EEO discrimination, he could elect to file an appeal with the MSPB or an EEO complaint , but not both, and the election was exercised by which one he file d first. The Agency advised Complainant of the time limits to file an appeal with the MSPB and initiate EEO counseling to start the EEO complaint process. Complainant appealed his removal to the MSPB on March 2, 2020. In an initial decision dated March 20, 2020, the MSPB granted the Agency’s motion to dismiss the appeal for being untimely filed. It found the appeal was filed beyond the 10 -day time limit which expired on February 10, 2020, which applied because Complainant was removed under the authority of 38 U.S.C. § 714. We note that after the Agency filed its motion to dismiss, Complainant filed a request with the MSPB that his appeal be dismissed without prejudice because he intended to file an EEO complaint rather than the appeal. The MSPB declined because Complaina nt elected to litigate his removal at the MSPB, albeit in an untimely manner, as evidenced by hi s receiving the election rights in his removal notice and exercising them by filing his appeal with the MSPB first. Complainant filed a petition with the ful l MSPB Board to review the initial decision. We take administrative notice that as of December 10, 2020, this petition is still pending before the MSPB. In the instant appeal from the Agency’s dismissal of his EEO complaint, Complainant , via his attorney, recounts that the removal notice advised him “you shall be deemed to have exercised your option to appeal this action a t such time as you timely initiate action to appeal to MSPB” (emphasis in original). He argues that he had no reason to be conc erned about the possibility of an untimely MSPB appeal since the Agency notified him he could then safety elect to proceed with a mixed case complaint through the Agency’s EEO process instead. Citing MSPB caselaw, Complainant argues that an election is not valid unless the agency properly inform s the complainant of the election requirements. He argues the Agency should be barred from asserting that an untimely filing constituted a valid election to proceed before the Board because the “timely” language was misleading, material and prejudicial . We find that this matter is not ripe for adjudication because a final decision on Complainant’s request to dismiss his MSPB appeal without prejudice is pending before the full Board. If the MSPB dismisse s Complainant’s appeal without prejudice , the Agency would be required to resume processing of issue 2 in Complainant’s EEO complaint from the point processing ceased. A dismissal without prejudice would vitiate the election of the MSPB forum. If the MSPB dismisse s Complainant’s appeal with prejudice , we have previously upheld the dismissal of an EEO complaint based on a valid election to proceed first through an MSPB appeal even when that appeal was later dismissed by the MSPB as untimely. See, e.g., Cardozo v. Homeland Security , EEOC Appeal No. 07A30014 (June 2, 2004) . We note that Complainant now also argues that his election to proceed with an MSPB appeal should not bar his subsequent EEO complaint because he justifiable relied on misinformation from the Agency on his election rights . We are making no finding on justifiable reliance here as it would be a premature determination prior to the MSPB ruling. Issue 1 On March 6, 2020, by telephone Complainant’s attorney initiated co ntact with an EEO counselor on behalf of Complainant . The EEO counselor completed an intake sheet indicating that Complainant raised issue 2 , with no mention of issue 1. On appeal, Complainant’s attorney argues that he engaged in EEO counseling on behalf of Complainant when he talked to the EEO counselor on March 6, 2020. We agree. 2 Complainant’s attorney argues that he did not receive the EEO counselor’s follow up emails , and a record review of them shows why – they incorrectly spelled his name – which is part of his email address. A review of the follow up emails confirms that the EEO counselor inverted two letters in the email address. Intake was by telephone, and the EEO counselor’s intake sheet thereon had the same error. We do not know the original source of the error. Regarding the telephone contacts, Complainant’s attorney argues that he has been working remotely since March 16, 2020, and his office telephone calls and voicemail forwards to his receptionist. He argues that his receptionist did not notify him of any phone calls or messages from the EEO counselor, but it is possible that during these chaotic first weeks of the COVID -19 pandemic, one or two calls were missed. On appeal, Complainant’s attorney argues that his initial contact with the EEO counselor was sufficient to put the Agency on notice of Com plainant’s claims, as evidenced by them being summarized in the counselor’s report. But only issue 2 was summarized there in. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that a claim is subject to dismissal where a complainant raises a matter in his EEO complaint that has not been brought to the attention of a n EEO c ounselor and is not like or related to a matter that has been brought to the attention of a n EEO counselor . Based on the record before us, we are unable to determine if Complainant’s attorney, on behalf of his client, raised issue 1 with the EEO counselor on March 6, 2020. Further, while the removal decision reflected the charges against Complainant, it contained none of the facts or specifications that gave rise to them. Without this information, which most likely is in the proposed removal, and more information on the specifics of issue 1, we are unable to discern , assuming Complainant’s counsel did not raise issue 1 with the EEO counselor, whether it is like or related to issue 2 . Accordingly, the FAD is REVERSED. ORDER The Agency shall hold issue 2 in abeyance until the MSPB makes a final decision on whether Complainant’s appeal on the same matter is dismissed with or without prejudice . Within 35 calendar days after the MSPB’s final decision, the Agency shall issue a letter accepting issue 2 for investigation or a FAD appealable to EEOC dismissing issue 2. The Agency shall gather information on whether Complainant’s attorney raised issue 1 with the EEO counselor on March 6, 2020, and if not whether issue 1 is l ike or related to issue 2. To the extent possible, gathering this information shall include securing statements by the EEO counselor and Complainant’s attorney , obtaining a copy of Complainant’s proposed re moval dated January 16, 2020, and obtaining information on the details of issue 1. Thereafter, within 40 calendar days of the date of this decision, the Agency shall issue a letter to Complainant’s counsel with a courtesy copy to Complainant accepting all or part of issue 1 for investigation or issue a FAD dismissing all of issue 1 under any applicable ground in 29 C.F.R. § 1614.107(a). All grounds remain available because the Agency had little opportunity to develop the specifics of issue 1 during the EEO counseling process. The Agency shall also ask Complainant’s counsel to clarify the bases of protected discrimination Complainant claims - there was a discrepancy regarding bases identified in intake verses the EEO complaint. The Agency shall update the bases i f there is a change . 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 ordere d 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 an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternat ively, 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 terminat ed. 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 (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 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 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) calend ar 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 § V II.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. Altern atively, 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, 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 toge ther 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 (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 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 re present 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, 2021 Date	[ "29 C.F.R. § 1614.107(a)", "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. § 1614.503(f)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e", "38 U.S.C. §...	[ -0.04908745363354683, 0.0941881462931633, 0.005975197069346905, -0.009826461784541607, 0.002616219688206911, 0.014562154188752174, -0.03315621241927147, -0.04563397541642189, -0.004475582856684923, 0.01591351442039013, -0.004077002871781588, -0.042723510414361954, -0.05834149196743965, 0.0...
8	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a05119.txt	01a05119.txt	TXT	text/plain	16,251	Bryan K. Cahn, Sr. v. Department of Veterans Affairs 01A05119 November 9, 2000 . Bryan K. Cahn, Sr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.	November 9, 2000	Appeal Number: 01A05119 Complaint Allegations: In his complaint, complainant alleged that he was subjected to reprisal due to his prior protected activity when he was harassed. Complainant described several incidents in support of his claim of harassment, including: on February 23, 2000, he was removed as Chair of the African American Committee (AAC) by the EEO Manager; on December 30, 1999, during an informal mediation meeting, the EEO Manager said that a new Chair of AAC was needed because complainant did not have the skills or the abilities; on December 29, 1999, he had an altercation with the EEO Manager; on June 17, 1999, he was told by the EEO Manager and the Medical Center Director that they could not afford the posters he requested. He believes the EEO Manager brought this issue to the Director's attention in order to harass him; on May 27, 1999, he and members of the AAC met with the EEO Manager to discuss details of a celebration and the EEO Manager made it a personal issue; on March 12, 1999, he had an altercation with the EEO Manager and discussed documents he was supposed to have received as an EEO Counselor, but did not; on March 10, 1999, after he sent an e-mail to the EEO Manager, he was told that the EEO Manager would recommend someone else to go to the Blacks in Government Conference; and on March 6, 1998, he had an altercation with the EEO Manager and was removed from his duties as a collateral duty EEO Counselor, as a member of AAC and as a member of the Native American Committee (NAC). Case Facts: Bryan K. Cahn, Sr. (complainant) filed a timely appeal with this Commission from a final agency decision (FAD) dated June 20, 2000 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.<1> In his complaint, complainant alleged that he was subjected to reprisal due to his prior protected activity when he was harassed. Complainant described several incidents in support of his claim of harassment, including: on February 23, 2000, he was removed as Chair of the African American Committee (AAC) by the EEO Manager; on December 30, 1999, during an informal mediation meeting, the EEO Manager said that a new Chair of AAC was needed because complainant did not have the skills or the abilities; on December 29, 1999, he had an altercation with the EEO Manager; on June 17, 1999, he was told by the EEO Manager and the Medical Center Director that they could not afford the posters he requested. He believes the EEO Manager brought this issue to the Director's attention in order to harass him; on May 27, 1999, he and members of the AAC met with the EEO Manager to discuss details of a celebration and the EEO Manager made it a personal issue; on March 12, 1999, he had an altercation with the EEO Manager and discussed documents he was supposed to have received as an EEO Counselor, but did not; on March 10, 1999, after he sent an e-mail to the EEO Manager, he was told that the EEO Manager would recommend someone else to go to the Blacks in Government Conference; and on March 6, 1998, he had an altercation with the EEO Manager and was removed from his duties as a collateral duty EEO Counselor, as a member of AAC and as a member of the Native American Committee (NAC). The agency framed the complaint as raising one claim of harassment, Claim A, and eight incidents. The agency dismissed Claim A, incident 1 (Claim A1) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, noting that complainant's position as Chair of the AAC was a collateral duty assignment that did not affect his employment. The agency also noted that complainant alleged that he was removed from this position in reprisal for reporting unethical activity and that such activity was not protected by Title VII. The agency then dismissed Claim A, incidents 2-8 (Claim A 2-8) pursuant to 29 C.F.R. § 1614.107(a)(1) and (a)(2). The agency found that complainant did not suffer a personal loss or harm with respect to a term, condition, or privilege of employment. The agency held, in the alternative, that complainant failed to raise these incidents with an EEO Counselor within the requisite regulatory time period. On appeal, complainant contends that he clearly alleged that the continual harassment to which he was subjected stemmed from his activities when he was a collateral duty EEO Counselor and testified about the EEO Manager's inappropriate behavior during the investigation of an EEO complaint. Complainant noted that this protected activity led to harassment at the hands of the EEO Manager, included the above noted events, as well as the EEO Manager's attempts to prevent him from receiving a Counselor position with the Office of Resolution Management during November 1997 and November 1998. The agency asks that its FAD be AFFIRMED. FINDINGS AND Legal Analysis: The Commission has held that the normal time limit for contacting an EEO Counselor may be suspended when a complainant alleges facts sufficient to constitute a continuing violation, i.e., the existence of a discriminatory system or policy, or a series of related discriminatory or retaliatory acts occurring both before and during the filing period. See Guba v. Department of the Army, EEOC Request No. 05970635 (February 11, 1999); Rohrer v. Department of Health and Human Services, EEOC Request No. 05940965 (April 12, 1995). If one or more of the interrelated acts falls within the time period for contacting an EEO Counselor, the complaint is deemed timely with regard to all acts. See Godby v. Department of the Treasury, EEOC Request No. 05960220 (May 7, 1998). In the case at hand, the agency failed to address the continuing violation theory, despite the fact that complainant clearly alleged that he was subjected to a series of related retaliatory acts. According to Commission precedent, in such circumstances an agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory." Guy v. Department of Energy, EEOC Request No. 05930703 (December 16, 1993) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). As the Commission further held in Williams, where an agency's final decision fails to address the issue of continuing violation, the complaint "must be remanded for consideration of this question and issuance of a new final agency decision making a specific determination under the continuing violation theory."	Bryan K. Cahn, Sr. v. Department of Veterans Affairs 01A05119 November 9, 2000 . Bryan K. Cahn, Sr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A05119 Agency No. 200P2247 DECISION Bryan K. Cahn, Sr. (complainant) filed a timely appeal with this Commission from a final agency decision (FAD) dated June 20, 2000 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.<1> In his complaint, complainant alleged that he was subjected to reprisal due to his prior protected activity when he was harassed. Complainant described several incidents in support of his claim of harassment, including: on February 23, 2000, he was removed as Chair of the African American Committee (AAC) by the EEO Manager; on December 30, 1999, during an informal mediation meeting, the EEO Manager said that a new Chair of AAC was needed because complainant did not have the skills or the abilities; on December 29, 1999, he had an altercation with the EEO Manager; on June 17, 1999, he was told by the EEO Manager and the Medical Center Director that they could not afford the posters he requested. He believes the EEO Manager brought this issue to the Director's attention in order to harass him; on May 27, 1999, he and members of the AAC met with the EEO Manager to discuss details of a celebration and the EEO Manager made it a personal issue; on March 12, 1999, he had an altercation with the EEO Manager and discussed documents he was supposed to have received as an EEO Counselor, but did not; on March 10, 1999, after he sent an e-mail to the EEO Manager, he was told that the EEO Manager would recommend someone else to go to the Blacks in Government Conference; and on March 6, 1998, he had an altercation with the EEO Manager and was removed from his duties as a collateral duty EEO Counselor, as a member of AAC and as a member of the Native American Committee (NAC). The agency framed the complaint as raising one claim of harassment, Claim A, and eight incidents. The agency dismissed Claim A, incident 1 (Claim A1) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, noting that complainant's position as Chair of the AAC was a collateral duty assignment that did not affect his employment. The agency also noted that complainant alleged that he was removed from this position in reprisal for reporting unethical activity and that such activity was not protected by Title VII. The agency then dismissed Claim A, incidents 2-8 (Claim A 2-8) pursuant to 29 C.F.R. § 1614.107(a)(1) and (a)(2). The agency found that complainant did not suffer a personal loss or harm with respect to a term, condition, or privilege of employment. The agency held, in the alternative, that complainant failed to raise these incidents with an EEO Counselor within the requisite regulatory time period. On appeal, complainant contends that he clearly alleged that the continual harassment to which he was subjected stemmed from his activities when he was a collateral duty EEO Counselor and testified about the EEO Manager's inappropriate behavior during the investigation of an EEO complaint. Complainant noted that this protected activity led to harassment at the hands of the EEO Manager, included the above noted events, as well as the EEO Manager's attempts to prevent him from receiving a Counselor position with the Office of Resolution Management during November 1997 and November 1998. The agency asks that its FAD be AFFIRMED. FINDINGS AND ANALYSIS As an initial matter, we note that the agency improperly characterized complainant's claim. It is clear from the Counselor's report and the formal complaint, that complainant alleged that he was subjected to ongoing harassment arising from his testimony during an EEO investigation regarding the allegedly improper practices of the EEO Manager (RMO). While the agency labeled this claim as one of harassment, it then separately considered each incident, dismissing Claim A1 for failure to state a claim, and then turning to the remaining incidents and dismissing them for failure to state a claim and, in the alternative, untimely EEO Counselor contact. The agency did this despite the fact that the EEO Counselor identified complainant's claim as one of continuing violation. The Commission has held that the normal time limit for contacting an EEO Counselor may be suspended when a complainant alleges facts sufficient to constitute a continuing violation, i.e., the existence of a discriminatory system or policy, or a series of related discriminatory or retaliatory acts occurring both before and during the filing period. See Guba v. Department of the Army, EEOC Request No. 05970635 (February 11, 1999); Rohrer v. Department of Health and Human Services, EEOC Request No. 05940965 (April 12, 1995). If one or more of the interrelated acts falls within the time period for contacting an EEO Counselor, the complaint is deemed timely with regard to all acts. See Godby v. Department of the Treasury, EEOC Request No. 05960220 (May 7, 1998). In the case at hand, the agency failed to address the continuing violation theory, despite the fact that complainant clearly alleged that he was subjected to a series of related retaliatory acts. According to Commission precedent, in such circumstances an agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory." Guy v. Department of Energy, EEOC Request No. 05930703 (December 16, 1993) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). As the Commission further held in Williams, where an agency's final decision fails to address the issue of continuing violation, the complaint "must be remanded for consideration of this question and issuance of a new final agency decision making a specific determination under the continuing violation theory." Accordingly, the complaint in the case at hand must be remanded to allow the agency to determine whether any of the issues raised comprise part of a continuing violation. Furthermore, the agency is advised that Claim A1, standing alone, states a claim. Therefore, even assuming that the agency determines that the complaint does not establish a continuing violation, and again dismisses Claim A 2-8 for untimely EEO Counselor contact, it may not dismiss Claim A1. Complainant alleged that he was removed as Chair of the AAC by the EEO Manager due, at least in part, to his prior protected activity. Although the agency found that complainant alleged that his removal stemmed from reporting unethical activity, the EEO Counselor's report makes clear that complainant alleged that all of the incidents described therein were motivated by testimony he gave as an EEO Counselor during the investigation of an EEO complaint. Moreover, contrary to the agency's decision, complainant's claim that he was removed from a collateral duty assignment due to his prior protected activity does state a claim. See Berry v. Department of Housing and Urban Development, EEOC Appeal No. 01962794 (October 16, 1998) (Commission decision reaching the merits of a complainant's claim that she was removed from a collateral duty assignment due to discrimination). For the foregoing reasons, the FAD is hereby VACATED, and complainant's complaint is REMANDED for further processing consistent with the Commission's decision and applicable regulations. ORDER The agency is ORDERED to take the following actions: 1. The agency shall conduct a supplemental investigation into whether complainant has established a continuing violation. Within thirty (30) calendar days of the date this decision becomes final, the agency shall complete the supplemental investigation and decide whether to process or dismiss Claim A (2-8). See 29 C.F.R. § 1614.106 et seq. 2. If the agency determines that complainant has established a continuing violation, the agency shall process the remanded claim, including Claim A, incidents 1-8, in accordance with 29 C.F.R. § 1614.108. 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. 3. If, however, the agency decides that complainant has not established a continuing violation and that Claim A 2-8 therefore should be dismissed for failure to contact an EEO Counselor within the requisite time period, it shall notify complainant in writing of its determination, the rationale for that determination and that those claims will not be investigated, and shall place a copy of the notice in the investigation file. See 29 C.F.R. § 1614.107(b). A copy of the notice of processing must be submitted to the Compliance Officer, as referenced below. 4. If the agency determines that Claim A 2-8 should be dismissed, it shall continue to process Claim A1 in accordance with 29 C.F.R. § 1614.108, as we have determined that it states a claim standing alone. 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. 5. The investigations shall be conducted by an office other than the Office of Resolution Management West Los Angeles office, as the RMO is the EEO Program Manager of the Loma Linda VAMC and was previously employed at the West Los Angeles Office as an EEO Assistant/Specialist. 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 (K0900) 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)(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 29 C.F.R. § 1614.409. 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 (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 November 9, 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 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.	[ "Guba v. Department of the Army, EEOC Request No. 05970635 (February 11, 1999)", "Rohrer v. Department of Health and Human Services, EEOC Request No. 05940965 (April 12, 1995)", "Godby v. Department of the Treasury, EEOC Request No. 05960220 (May 7, 1998)", "Guy v. Department of Energy, EEOC Request No. 05930...	[ -0.11360976845026016, 0.059198133647441864, -0.04330436512827873, 0.014157136902213097, -0.03651396557688713, 0.10845445096492767, 0.04526584595441818, -0.055041976273059845, 0.039887577295303345, 0.03500479459762573, 0.021802417933940887, -0.03013545088469982, -0.004138339310884476, 0.003...
9	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000982.pdf	2019000982.pdf	PDF	application/pdf	14,761	Davina W .,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency.	April 13, 2019	Appeal Number: 2019000982 Background: At the time of events giving rise to this complaint, Complainant w as employed by the Agency as a Legal Administrative Specialist (Benefit Authorizer) GS -0901- 9 at the Western Program Service Center in Richmond, California. 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 With the FAD, the Agency’s Office of Civil Rights and Equal Opportunity (hereinafter equal employment opportunity (EEO) office) provided Complainant an outdated version of EEOC’s Notice of Appeal/Petition - Form 573 for use to file her appeal. The address therein to file an appeal with this office i s over 10 years out of date. The correct address is in the letterhead of this Legal Analysis: the Commission’s website. 2 With the FAD, the Agency’s Office of Civil Rights and Equal Opportunity (hereinafter equal employment opportunity (EEO) office) provided Complainant an outdated version of EEOC’s Notice of Appeal/Petition - Form 573 for use to file her appeal. The address therein to file an appeal with this office i s over 10 years out of date. The correct address is in the letterhead of this decision. Final Decision: Accordingly, we deem Complainant’s appeal to be timely filed. There is an updated EEOC Form 573. In October 2017, Complainant filed EEO Complaint 1 (SF -17-0799) alleging that Agency management discriminated against her based on her disability and prior EEO activity, in relevant part: 4. From May 2014 and ongoing, it failed to provide her a reasonable accommodation for her disability; 5. From 2013 and ongoing, it s ubjected her to harassment in terms of leave, telework, and reasonable accommodation. In Complaint 1 Complainant contended that because of her sensitivity to substances such as perfumes, air fresheners, clean ing products, and ongoing construction, she needed to increase her telework from once weekly to full -time and needed another laptop that was not contaminated (the Agency replaced it three times before ). Mostly or fully, Complainant only worked on the days she teleworked. Issues 4 and 5 regarded the same thing, i.e., the Agency’s failure to provide Complainant reasonable accommodation in the form of full -time telework (primarily) and a replacement computer, and the consequences thereof – forced to use up her paid leave, then take unpaid leave, and then, in combination with discriminatory leave policies and /or discriminatory application thereof , being charged Absence Without Leave (AWOL). Complainant’s request to telework full time as a reasonable accommodat ion was formally denied on January 10, 2018, by letter from the Agency’s National Reasonable Accommodation Coordinator. In April 2018, Complainant filed EEO Complaint 2 ( SF-18-0328) alleging discrimination based on her disability when this occurred , i.e., this constituted harassment and a denial of reasonable accommodation. She also alleged that from January 2018 and ongoing, she was discriminated against regarding reasonable accommodation, telework, and working conditions. On May 11, 2018, management issued Complainant a Notice of Proposed Removal for extensive AWOL from October 2017 – February 2018. In June 2018, Complainant filed EEO Complaint 3 (SF-18-0604) alleging this constituted reprisal for prior EEO activity , and that because she was not reasonably accommodated, she was forced to take paid leave, when it ran out unpaid leave, and then, in combination with discriminatory leave policy and/or improper application thereof she was charged AWOL, which resulted in her proposed removal. In Complainant’s i nvestigatory affidavit for C omplaint 3, the reasonable accommodation she identified was not being granted full - time telework , and as part of her remedy she stated she wanted issuance of a clean laptop. The Agency accepted Complaints 1 , 2 and 3 for investigation, they were investigated, and Complainant requested hearings on them before an Administrative Judge (AJ) with the EEOC. 3 The Agency’s EEO offic e also ordered a supplemental investigation on issue 4 of Complaint 1 to include the January 10, 2018 denial letter, which was conducted. On August 8, 2018, the Agency issued Complainant a Decision to Remove her, sustaining the proposed removal. Complainant’s employment was terminated on August 15, 2018. On October 5, 2018, Complainant filed EEO Complaint 4 (SF-18-0924) , the complaint before us now, alleging that the Agency: 1. Failed to provide her with a reasonable accommodation for her disability from June 2014 – August 2018; 2. Subjected her to harassment based on her disability and reprisal for prior EEO activity from June 2014 – August 2018, in terms of leave, telework, reasonable accommodation, and removal; and 3. Subjected her to disparate treatment disability discrimination based on her disability and reprisal for prior EEO activity when it terminated her employment on August 15, 2018. Therein, Complainant reiterated her prior allegations , i.e., that because the Agency failed to provide her the reasonable accommodation of full time telework she was forced to take paid leave, when that ran out unpaid leave, and then, in combination with di scriminatory leave policy and/or unfair application thereof, she was charged large amounts of AWOL. She also alleged that not having an uncontaminated laptop contributed to this. The Agency dismissed Complaint 4 on November 5, 2018, for stating the same claims in Complaints 1 , 2 and 3. The instant appeal followed. Shortly after the Agency dismissed Complaint 4, by email to the parties on December 17, 2018, the AJ with the EEOC who was adjudicating Complaints 1, 2, and 3 and other EEO complaints by Compl ainant advised the Agency’s representative to ask the Agency’s EEO office to rescind the dismissal of the termination claim in Complaint 4 so it could be processed as a mixed case under 29 C.F.R. § 1614.302(d). Thereafter, the AJ consolidated EEO complaint s 1, 2 and 3, along with four other EEO complaints by Complainant that were at the hearing stage. This did not include Complaint 4, which was not before the AJ. On December 20, 2018, the Agency’s EEO office, following the advice of the AJ, rescinded the portion of the November 5, 2018 FAD that addressed Complainant’s termination. Thereafter, on January 30, 2019, based on the EEO investigation conducted on the proposed removal allegation in Complaint 3, the Agency’s EEO office issued a FAD under re-docketed Agency No. SF -19- 0294, finding that C omplainant was not discriminated against based on disability and reprisal for prior EEO activity when she was terminated on August 15, 2018. The FAD contained appeal rights to the MSPB, which Complainant exercised. 4 Complainant complained to the Agency’s EEO office that an EEO investigation was not conducted on her removal . The EEO office rescinded the January 30, 2019 FAD, and via contractor conducted an EEO investigation on the termination. The MSPB retained jurisdiction over and continued processing Complainant’s appeal . The Agency represents that the MSPB found that the By email on April 5, 2019, the referenced AJ with the EEOC advised the parties that because the MSPB’s adjudication of Complainant’s appeal may take some time, she removed Complainant’s hearing requests from the active EEOC docket, without prejudice, i.e., they will be held in abeyance pending the MSPB’s final decision. The parties represent that the MSPB accepted jurisdiction over Complainant’s appeal, that an MSPB Administrative Judge conducted a hearing thereon on June 3 – 4, 2019, and that they are awaiting a decision by the MSPB. As recently as September 9, 2019, Complainant represented that the parties are awaiting a decision by the MSPB. On appeal from the part of the November 5, 2018 FAD that was not rescinded, i.e., renumbered herein as issues 1 and 2 of Complaint 4, Complainant argues, in relevant part, that they involve a later period than those covered in her other EEO cases. Regarding her termination, Complainant argues that the Agency’s EEO investigation thereon was insufficient. In oppos ition to Complainant’s appeal, the Agency argues that because the MSPB accepted jurisdiction over Complainant’s appeal of her termination, her termination is not before the EEOC in the instant appeal. ANALYSIS AND FINDINGS The Agency argues that because the MSPB accepted jurisdiction over Complainant’s appeal on her termination, her termination is not before the EEOC in the instant appeal. We agree. Cf ., 29 C.F.R. § 1614.302(c)(2)(ii). If Complainant raised, in MSPB parlance, the “affirmative defense” of discrimination and/or retaliation for prior EEO activity on her termination, she should expect that the MSPB’s decision on the merits of her appeal will contain petition rights to the EEOC’s federal sector appellate function to review the MSPB’s determination on her EEO affirmative defenses . Because Complainant’s termination is not before us, her contention that the Agency’s EEO investiga tion thereon was insufficient is not before us. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires that p rior to a request for a hearing in a case, the agency shall dismiss a complaint that states the same claim that is pending before or has been decide d by the agency or Commission. Regarding issues 1 and 2 of Complaint 4, as renumbered herein, we agree with the Agency that they are identical to the claims Complainant raised in EEO complaints 1 and 2. To the extent that issue 2 regards Complainant’s re moval, the above analysis on Complainant’s termination claim applies. rescinding the January 30, 2019 FAD did not divest the MSPB of jurisdiction over Complainant’s appeal. After the EEOC AJ resumes processing Complainant’s EEO c omplaints that are before her, Complainant should provide the AJ with a copy of this decision to ensure that the AJ treats issues 1 and 2 of EEO Complaint 4, as renumbered herein, as being part of EEO Complaints 1 and 2. The portion of the November 5, 2018 FAD that was not rescinded (issues 1 and 2, as renumbered herein) is AFFIRMED.	Davina W .,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019000982 Agency No. SF-18-0924 DECISION On April 13, 2019, Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision dated November 5, 2018, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant w as employed by the Agency as a Legal Administrative Specialist (Benefit Authorizer) GS -0901- 9 at the Western Program Service Center in Richmond, California. 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 With the FAD, the Agency’s Office of Civil Rights and Equal Opportunity (hereinafter equal employment opportunity (EEO) office) provided Complainant an outdated version of EEOC’s Notice of Appeal/Petition - Form 573 for use to file her appeal. The address therein to file an appeal with this office i s over 10 years out of date. The correct address is in the letterhead of this decision. Accordingly, we deem Complainant’s appeal to be timely filed. There is an updated EEOC Form 573. In October 2017, Complainant filed EEO Complaint 1 (SF -17-0799) alleging that Agency management discriminated against her based on her disability and prior EEO activity, in relevant part: 4. From May 2014 and ongoing, it failed to provide her a reasonable accommodation for her disability; 5. From 2013 and ongoing, it s ubjected her to harassment in terms of leave, telework, and reasonable accommodation. In Complaint 1 Complainant contended that because of her sensitivity to substances such as perfumes, air fresheners, clean ing products, and ongoing construction, she needed to increase her telework from once weekly to full -time and needed another laptop that was not contaminated (the Agency replaced it three times before ). Mostly or fully, Complainant only worked on the days she teleworked. Issues 4 and 5 regarded the same thing, i.e., the Agency’s failure to provide Complainant reasonable accommodation in the form of full -time telework (primarily) and a replacement computer, and the consequences thereof – forced to use up her paid leave, then take unpaid leave, and then, in combination with discriminatory leave policies and /or discriminatory application thereof , being charged Absence Without Leave (AWOL). Complainant’s request to telework full time as a reasonable accommodat ion was formally denied on January 10, 2018, by letter from the Agency’s National Reasonable Accommodation Coordinator. In April 2018, Complainant filed EEO Complaint 2 ( SF-18-0328) alleging discrimination based on her disability when this occurred , i.e., this constituted harassment and a denial of reasonable accommodation. She also alleged that from January 2018 and ongoing, she was discriminated against regarding reasonable accommodation, telework, and working conditions. On May 11, 2018, management issued Complainant a Notice of Proposed Removal for extensive AWOL from October 2017 – February 2018. In June 2018, Complainant filed EEO Complaint 3 (SF-18-0604) alleging this constituted reprisal for prior EEO activity , and that because she was not reasonably accommodated, she was forced to take paid leave, when it ran out unpaid leave, and then, in combination with discriminatory leave policy and/or improper application thereof she was charged AWOL, which resulted in her proposed removal. In Complainant’s i nvestigatory affidavit for C omplaint 3, the reasonable accommodation she identified was not being granted full - time telework , and as part of her remedy she stated she wanted issuance of a clean laptop. The Agency accepted Complaints 1 , 2 and 3 for investigation, they were investigated, and Complainant requested hearings on them before an Administrative Judge (AJ) with the EEOC. 3 The Agency’s EEO offic e also ordered a supplemental investigation on issue 4 of Complaint 1 to include the January 10, 2018 denial letter, which was conducted. On August 8, 2018, the Agency issued Complainant a Decision to Remove her, sustaining the proposed removal. Complainant’s employment was terminated on August 15, 2018. On October 5, 2018, Complainant filed EEO Complaint 4 (SF-18-0924) , the complaint before us now, alleging that the Agency: 1. Failed to provide her with a reasonable accommodation for her disability from June 2014 – August 2018; 2. Subjected her to harassment based on her disability and reprisal for prior EEO activity from June 2014 – August 2018, in terms of leave, telework, reasonable accommodation, and removal; and 3. Subjected her to disparate treatment disability discrimination based on her disability and reprisal for prior EEO activity when it terminated her employment on August 15, 2018. Therein, Complainant reiterated her prior allegations , i.e., that because the Agency failed to provide her the reasonable accommodation of full time telework she was forced to take paid leave, when that ran out unpaid leave, and then, in combination with di scriminatory leave policy and/or unfair application thereof, she was charged large amounts of AWOL. She also alleged that not having an uncontaminated laptop contributed to this. The Agency dismissed Complaint 4 on November 5, 2018, for stating the same claims in Complaints 1 , 2 and 3. The instant appeal followed. Shortly after the Agency dismissed Complaint 4, by email to the parties on December 17, 2018, the AJ with the EEOC who was adjudicating Complaints 1, 2, and 3 and other EEO complaints by Compl ainant advised the Agency’s representative to ask the Agency’s EEO office to rescind the dismissal of the termination claim in Complaint 4 so it could be processed as a mixed case under 29 C.F.R. § 1614.302(d). Thereafter, the AJ consolidated EEO complaint s 1, 2 and 3, along with four other EEO complaints by Complainant that were at the hearing stage. This did not include Complaint 4, which was not before the AJ. On December 20, 2018, the Agency’s EEO office, following the advice of the AJ, rescinded the portion of the November 5, 2018 FAD that addressed Complainant’s termination. Thereafter, on January 30, 2019, based on the EEO investigation conducted on the proposed removal allegation in Complaint 3, the Agency’s EEO office issued a FAD under re-docketed Agency No. SF -19- 0294, finding that C omplainant was not discriminated against based on disability and reprisal for prior EEO activity when she was terminated on August 15, 2018. The FAD contained appeal rights to the MSPB, which Complainant exercised. 4 Complainant complained to the Agency’s EEO office that an EEO investigation was not conducted on her removal . The EEO office rescinded the January 30, 2019 FAD, and via contractor conducted an EEO investigation on the termination. The MSPB retained jurisdiction over and continued processing Complainant’s appeal . The Agency represents that the MSPB found that the By email on April 5, 2019, the referenced AJ with the EEOC advised the parties that because the MSPB’s adjudication of Complainant’s appeal may take some time, she removed Complainant’s hearing requests from the active EEOC docket, without prejudice, i.e., they will be held in abeyance pending the MSPB’s final decision. The parties represent that the MSPB accepted jurisdiction over Complainant’s appeal, that an MSPB Administrative Judge conducted a hearing thereon on June 3 – 4, 2019, and that they are awaiting a decision by the MSPB. As recently as September 9, 2019, Complainant represented that the parties are awaiting a decision by the MSPB. On appeal from the part of the November 5, 2018 FAD that was not rescinded, i.e., renumbered herein as issues 1 and 2 of Complaint 4, Complainant argues, in relevant part, that they involve a later period than those covered in her other EEO cases. Regarding her termination, Complainant argues that the Agency’s EEO investigation thereon was insufficient. In oppos ition to Complainant’s appeal, the Agency argues that because the MSPB accepted jurisdiction over Complainant’s appeal of her termination, her termination is not before the EEOC in the instant appeal. ANALYSIS AND FINDINGS The Agency argues that because the MSPB accepted jurisdiction over Complainant’s appeal on her termination, her termination is not before the EEOC in the instant appeal. We agree. Cf ., 29 C.F.R. § 1614.302(c)(2)(ii). If Complainant raised, in MSPB parlance, the “affirmative defense” of discrimination and/or retaliation for prior EEO activity on her termination, she should expect that the MSPB’s decision on the merits of her appeal will contain petition rights to the EEOC’s federal sector appellate function to review the MSPB’s determination on her EEO affirmative defenses . Because Complainant’s termination is not before us, her contention that the Agency’s EEO investiga tion thereon was insufficient is not before us. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires that p rior to a request for a hearing in a case, the agency shall dismiss a complaint that states the same claim that is pending before or has been decide d by the agency or Commission. Regarding issues 1 and 2 of Complaint 4, as renumbered herein, we agree with the Agency that they are identical to the claims Complainant raised in EEO complaints 1 and 2. To the extent that issue 2 regards Complainant’s re moval, the above analysis on Complainant’s termination claim applies. rescinding the January 30, 2019 FAD did not divest the MSPB of jurisdiction over Complainant’s appeal. After the EEOC AJ resumes processing Complainant’s EEO c omplaints that are before her, Complainant should provide the AJ with a copy of this decision to ensure that the AJ treats issues 1 and 2 of EEO Complaint 4, as renumbered herein, as being part of EEO Complaints 1 and 2. The portion of the November 5, 2018 FAD that was not rescinded (issues 1 and 2, as renumbered herein) 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 cl early 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 wit h 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 cert ified 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 with in 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 thes e 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 September 24, 2019 Date	[ "29 C.F.R. § 1614.302(d)", "29 C.F.R. § 1614.302(c)", "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.F.R. § 1614.604(c)", "29 U.S.C. § 791" ]	[ -0.1247195452451706, 0.07792377471923828, -0.04767991229891777, 0.02638176642358303, -0.010588495060801506, 0.04481617361307144, 0.07598234713077545, -0.013341167010366917, 0.040798719972372055, 0.011408076621592045, 0.020956920459866524, -0.012112202122807503, -0.03691786900162697, -0.023...
10	https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000626.pdf	2024000626.pdf	PDF	application/pdf	22,637	Deandre C .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.	September 19, 2023	Appeal Number: 2024000626 Background: At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Lieutenant for the Department of Vete rans A ffairs Polic e, Finger Lakes Healthcare System Canandaigua Di vision, at the Canandaigua VA Medical Center in Canandaigua, New York. On April 24, 2023, Complainant filed a f ormal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race ( Black/ African American), disability , and reprisal for prior protected EEO activity . His claims, as framed in the Agency ’s Final Decision and in Complainant ’s complaint are as follows: 1. On or about Septembe r 16, 2022, an officer ( “Officer”) yelled the slur “n -gger” on multiple occasions, directing t he statement at Complainant; 2. On or about September 18, 2022, Officer left Complainant a voicemail regarding overtime assignments where he used profane language directed at Complainant ; and 3. On or about September 26, 2022, Complainant was forced to take a dministrative leave. The Agency dismissed Claim 3 pursuant to 29 C.F.R. §1614.107(a)(2) , untimely contact with an EEO Counselor. The Agency dismissed Claims 1 and 2 pursuant to 29 C.F.R. §1614.107(a)(1) for “bringing the sa me claims as previously alleged. ” As Complainant ’s attorney made reference to li tigation in one of her emails regarding this complaint, the Agency also dismissed Complainant ’s claims pursuant to 29 C.F.R. §1614.107(a)(3) , for raising the same claims pending before a court of competent jurisdiction. The instant appeal followed. CONTENTIONS ON APPEAL Neither party filed a b rief in support of or in opposition to Complainant ’s appeal. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commiss ion, which requires the Commis sion to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its dec ision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No. 05970077 (Mar, 13, 1997) . Thus, al l reaso nable inferences that may be d rawn from the complaint’s allegations must be made in favor of the complainant. Legal Analysis: the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No. 05970077 (Mar, 13, 1997) . Thus, al l reaso nable inferences that may be d rawn from the complaint’s allegations must be made in favor of the complainant. ANALYSIS Initial EEO Contact – Claim 3 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Empl oyment 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. By the Agency’s account , on March 27, 2023, Complainant, through his attorney, initiated EEO contact for the instant complaint. According to the Agency, Complainant timely raised Claims 1 and 2 in a different EEO complaint, (Agency Case No. 200528A520 22148464), which he initiated on September 28, 2022. The Agency asserts that it issued Complainant a Notice of Right to File on November 23, 2022, but Complainant failed to res pond, so the complaint containing Claims 1 and 2 was administratively closed on December 13, 2022. For the instant complaint, the Agency asserts that Claim 3 is the only “new ” allegati on, because it was not raised in Agency Case No. 200528A52022148464. As Claim 3 occurred over 45 days prior to the March 27, 2023 date of initial conta ct, the Agency dismissed Claim 3 as untimely. According to hi s formal EEO complaint, Complainant initiated EEO contact for all three claims in the instant complaint on September 19, 2022, he received a Notice of Right to File on April 10, 2023, and he filed his f ormal EEO c omplaint on April 24, 2023. The April 10, 2023 Notice of Ri ght to File and the EEO Counselor’s Report, dated April 7, 2023, both state t hat Complainant initiated EEO contact on March 27, 2023. Complainant ’s formal EEO complaint lists Se ptember 19, 2022 as the date of initial EEO contact, and offers no explanation for the March 27, 2023 date. 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 Def., EEOC Request No. 05920506 (Aug. 25, 1992)). Moreover , 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 decisions." See also Gens v. Dep’t of Def ., EEOC Request No. 05910837 ( Jan. 31, 1992). The April 7, 2023 EEO Counselor ’s Report contai ns the only hint of acknowledgement by Complainant that Claim 3 may not have been timely raised with an EEO Counselor . The EEO Counselor ’s comment, in its entirely states: “Counselors ’ untimely note: In regard to why the claim is late [Complainant] stated this situation has created issues with his family life and exacerbated his di sabilities.” However, Complainant did not write a response in the portion of the Formal EE O Complaint form reserved for explanations for failing to notify an EEO Counselor of a discriminatory event within 45 days. Prior to issuing its final decision, the Agency emailed Complainant ’s attorney twice , requesting clarification as to why Complainant did not raise his allegation( s) within 45 days , but received no response. Ultimately, the Agency ’s only support for the delay in EEO contact is not in Complainant or his attorney ’s own words, does not specify dates, or exactly what portion of the claim was provided “late.” It is undisputed that Complainant initiated EEO contact in S eptem ber. Other than its own assertion and the va gue statement in the EEO Counselor ’s Report attributed to Complainant, the Agency set forth no evidence that Claim 3 was separately and untimely raised with an EEO Counselor. Presumably the Agency had access to documents to support its assertions, such as the alleged initial March 27, 2023, contact from Complainant ’s attorney, or EEO counseling documents from Agency Case No. 200528A52022148464. Yet, there is no documentation of any EEO activity or contact between the parties dated earlier than April 7, 2023 . We cannot conclude from the Ag ency ’s proffered evidence that Complainant ’s initial EEO contact for Claim 3 was unti mely. Same Claims – Claims 1 and 2 EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the a gency or Commission." This provision applies only in situations when the claim was stated in a previous formal EEO complaint; it does not ap ply to claims previously raised at the informal stage of the EEO process. Se e Complainant v. U.S. Postal Serv., EEOC Request No. 0520140201 (June 10, 2014) (The Commission has held that it is error to dismiss a claim on the grounds that a claim was previo usly raised when it was raised in an informal complaint); Francis v. U.S. Pos tal Serv. , EEOC Appeal No. 01A20240 (D ec. 9, 2002) (if not formal complaint filed, "not possible to have a prior complaint pending or decided" on the same matter). It is undisput ed that Complainant did not raise Claims 1 and 2 in a pri or formal EEO c ompla int, theref ore they cannot be dismissed as the “same claim. ” To the extent that there is an allegation that Complainant “abandoned” Claims 1 and 2 during the informal EEO counsel ing process, the Agency has not provided sufficient evidence for dismissal on th ese grounds. Abandoned Claims – Claims 1 and 2 The Commission has held that "a compl ainant who receives counseling on an allegation but does not go forward with a formal com plaint on the allegation, is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Posta l Serv. , EEOC Request No. 05980289 (July 16, 1999).2 2 The Agency ’s final deci sion properly identified two abandoned claims raised during EEO counseling for the instant complaint : (1) on June 30, 2023, Complainant submitted retirement paperwork due to stress from his work at the Agency, a nd (2) over the years, Complainant was direct ly and indirectly subjecte d to racist comments, which made him feel unsafe at work, and According to the Agency, Complainant raised the allegations articula ted in Claims 1 and 2 in Agency Case No. 200528A52022148464, but he did not go for ward with a formal EEO complaint. The Agency has not provided sufficient evidence t o support that Claims 1 and 2 were previously raised, and/or abandoned. The only evidenc e of Agency Case No. 200528A52022148464 in the record is what appears to be a screen shot of an internal s earch for an EEO case number alongside the first several letters of Complainant ’s last name. There is no date or status pr ovided on the search results . Moreover, the Agency did not provide any EEO Counsel ing documents for Agency Cas e No. 200528A52022148464. The only documentation of these claims in the record is in the file for the instant complaint. Therefore, Claims 1 and 2 cannot be dismissed on the grounds that they were previously raised with an EEO Counselor. Assuming, for t he sake of argument, that Complainant did raise the allegations in Claims 1 and 2 under Agency Case No. 200528A52022148464, there is no evidence that he failed to pursue them in a formal EEO complaint. The Agency did not provide a copy of the Notice of Ri ght to File a Formal EEO Complaint for Agency Case No. 200528A52022148464, nor has it shown proof of receipt by Complainant. See Paoletti v. United States Postal Serv. , EEOC Request No. 05950259 (Aug. 17, 1995) (to establish untimely fi ling an agency must demonstrate that the complainant received the Notice of Right to File , and that the Notice clearly informed the complainant of the filing deadline .) The Agency also offers no documentation supporting its assertion that Agency Case No. 200528A52022148464 was administratively close d on December 13, 2022, or that Complainant was notified of the closure.3 Pending Litigation The r egulation found at 29 C.F.R. § 1614.107 ( a)(3) requires the dismissal of an EEO complaint that is the basis of a pending civil ac tion in a United States District Court in which the complainant is a party. Commission regulations mandate dismissal of the EEO complaint under these circumstances to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating t he potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. Management failed to take action. As he did not list these in his formal EEO complaint, he is barred from raising them in a future EEO complaint. 3 We cannot ignore the unexplai ned six-month time gap from when Complainant initiated co ntact with an EEO Counselor on or about September 19, 2022, and the EEO Counselor ’s Report dated April 7, 2023. Regardless of whether Complainant heard from the Agency after his initial September con tact, his prolonged lack of follow up reflects a lack of due diligence . But for the Agency ’s failure to meet its evidentiary burden, we would pres ume Complainant abandoned his claims. We remind Complainant that regardless of whether he designated legal representation, he is responsible for proceeding his EEO complaint at all times . See 29 C.F.R. §1614.605(e). See Katina R. v. Equal Employment Opportunity Commis sion, EEOC Request No. 0520160272 (Aug. 3, 2016) citing Baylink v. Dep’t of Veterans Affairs , EEOC Requ est No. 0520070666 (Nov. 26, 2007) other ci tations omitted. Complainant ’s attorne y did not respond to the Agency’ s req uest for clarification on her reference to “pending li tigation ,” and ther e is no documentation in the record that Complainant ’s allegations were raised in a civil action. We cannot affirm dism issal pursuant to 29 C .F.R. § 1614.107 (a)(3) . However, if Complainant has raised the allegations in th e instant complaint in another venue , he must notify the Agency and the EEOC compliance officer assigned to this complaint immediately .	Deandre C .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2024000626 Agency No. 200H528A52023151248 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ( “EEOC ” or “Commission ”) from the Agency's September 19, 2023 dismissal of h is complaint of unlawful employment discrimination in violation Title VII of the Civil Rights Act of 19 64 (“ 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 reasons presented below, w e REVERSE the Agency’s final decision dismissing Compl ainant’s complaint , and REMAND the matter for further proces sing in accordance with this Decision and Order below . ISSUE PRESENTED Whether the Agency’s final decision properly dismissed Complainant’s formal complaint pursuant to 29 C.F.R. §§ 1614.107(a)( 2), 1614.107(a)(1), and/or 1614.107(a)(3). BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Lieutenant for the Department of Vete rans A ffairs Polic e, Finger Lakes Healthcare System Canandaigua Di vision, at the Canandaigua VA Medical Center in Canandaigua, New York. On April 24, 2023, Complainant filed a f ormal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race ( Black/ African American), disability , and reprisal for prior protected EEO activity . His claims, as framed in the Agency ’s Final Decision and in Complainant ’s complaint are as follows: 1. On or about Septembe r 16, 2022, an officer ( “Officer”) yelled the slur “n -gger” on multiple occasions, directing t he statement at Complainant; 2. On or about September 18, 2022, Officer left Complainant a voicemail regarding overtime assignments where he used profane language directed at Complainant ; and 3. On or about September 26, 2022, Complainant was forced to take a dministrative leave. The Agency dismissed Claim 3 pursuant to 29 C.F.R. §1614.107(a)(2) , untimely contact with an EEO Counselor. The Agency dismissed Claims 1 and 2 pursuant to 29 C.F.R. §1614.107(a)(1) for “bringing the sa me claims as previously alleged. ” As Complainant ’s attorney made reference to li tigation in one of her emails regarding this complaint, the Agency also dismissed Complainant ’s claims pursuant to 29 C.F.R. §1614.107(a)(3) , for raising the same claims pending before a court of competent jurisdiction. The instant appeal followed. CONTENTIONS ON APPEAL Neither party filed a b rief in support of or in opposition to Complainant ’s appeal. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commiss ion, which requires the Commis sion to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its dec ision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as tr ue. See Cobb v. Dep’t of the Treas. , EEOC Request No. 05970077 (Mar, 13, 1997) . Thus, al l reaso nable inferences that may be d rawn from the complaint’s allegations must be made in favor of the complainant. ANALYSIS Initial EEO Contact – Claim 3 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Empl oyment 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. By the Agency’s account , on March 27, 2023, Complainant, through his attorney, initiated EEO contact for the instant complaint. According to the Agency, Complainant timely raised Claims 1 and 2 in a different EEO complaint, (Agency Case No. 200528A520 22148464), which he initiated on September 28, 2022. The Agency asserts that it issued Complainant a Notice of Right to File on November 23, 2022, but Complainant failed to res pond, so the complaint containing Claims 1 and 2 was administratively closed on December 13, 2022. For the instant complaint, the Agency asserts that Claim 3 is the only “new ” allegati on, because it was not raised in Agency Case No. 200528A52022148464. As Claim 3 occurred over 45 days prior to the March 27, 2023 date of initial conta ct, the Agency dismissed Claim 3 as untimely. According to hi s formal EEO complaint, Complainant initiated EEO contact for all three claims in the instant complaint on September 19, 2022, he received a Notice of Right to File on April 10, 2023, and he filed his f ormal EEO c omplaint on April 24, 2023. The April 10, 2023 Notice of Ri ght to File and the EEO Counselor’s Report, dated April 7, 2023, both state t hat Complainant initiated EEO contact on March 27, 2023. Complainant ’s formal EEO complaint lists Se ptember 19, 2022 as the date of initial EEO contact, and offers no explanation for the March 27, 2023 date. 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 Def., EEOC Request No. 05920506 (Aug. 25, 1992)). Moreover , 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 decisions." See also Gens v. Dep’t of Def ., EEOC Request No. 05910837 ( Jan. 31, 1992). The April 7, 2023 EEO Counselor ’s Report contai ns the only hint of acknowledgement by Complainant that Claim 3 may not have been timely raised with an EEO Counselor . The EEO Counselor ’s comment, in its entirely states: “Counselors ’ untimely note: In regard to why the claim is late [Complainant] stated this situation has created issues with his family life and exacerbated his di sabilities.” However, Complainant did not write a response in the portion of the Formal EE O Complaint form reserved for explanations for failing to notify an EEO Counselor of a discriminatory event within 45 days. Prior to issuing its final decision, the Agency emailed Complainant ’s attorney twice , requesting clarification as to why Complainant did not raise his allegation( s) within 45 days , but received no response. Ultimately, the Agency ’s only support for the delay in EEO contact is not in Complainant or his attorney ’s own words, does not specify dates, or exactly what portion of the claim was provided “late.” It is undisputed that Complainant initiated EEO contact in S eptem ber. Other than its own assertion and the va gue statement in the EEO Counselor ’s Report attributed to Complainant, the Agency set forth no evidence that Claim 3 was separately and untimely raised with an EEO Counselor. Presumably the Agency had access to documents to support its assertions, such as the alleged initial March 27, 2023, contact from Complainant ’s attorney, or EEO counseling documents from Agency Case No. 200528A52022148464. Yet, there is no documentation of any EEO activity or contact between the parties dated earlier than April 7, 2023 . We cannot conclude from the Ag ency ’s proffered evidence that Complainant ’s initial EEO contact for Claim 3 was unti mely. Same Claims – Claims 1 and 2 EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the a gency or Commission." This provision applies only in situations when the claim was stated in a previous formal EEO complaint; it does not ap ply to claims previously raised at the informal stage of the EEO process. Se e Complainant v. U.S. Postal Serv., EEOC Request No. 0520140201 (June 10, 2014) (The Commission has held that it is error to dismiss a claim on the grounds that a claim was previo usly raised when it was raised in an informal complaint); Francis v. U.S. Pos tal Serv. , EEOC Appeal No. 01A20240 (D ec. 9, 2002) (if not formal complaint filed, "not possible to have a prior complaint pending or decided" on the same matter). It is undisput ed that Complainant did not raise Claims 1 and 2 in a pri or formal EEO c ompla int, theref ore they cannot be dismissed as the “same claim. ” To the extent that there is an allegation that Complainant “abandoned” Claims 1 and 2 during the informal EEO counsel ing process, the Agency has not provided sufficient evidence for dismissal on th ese grounds. Abandoned Claims – Claims 1 and 2 The Commission has held that "a compl ainant who receives counseling on an allegation but does not go forward with a formal com plaint on the allegation, is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Posta l Serv. , EEOC Request No. 05980289 (July 16, 1999).2 2 The Agency ’s final deci sion properly identified two abandoned claims raised during EEO counseling for the instant complaint : (1) on June 30, 2023, Complainant submitted retirement paperwork due to stress from his work at the Agency, a nd (2) over the years, Complainant was direct ly and indirectly subjecte d to racist comments, which made him feel unsafe at work, and According to the Agency, Complainant raised the allegations articula ted in Claims 1 and 2 in Agency Case No. 200528A52022148464, but he did not go for ward with a formal EEO complaint. The Agency has not provided sufficient evidence t o support that Claims 1 and 2 were previously raised, and/or abandoned. The only evidenc e of Agency Case No. 200528A52022148464 in the record is what appears to be a screen shot of an internal s earch for an EEO case number alongside the first several letters of Complainant ’s last name. There is no date or status pr ovided on the search results . Moreover, the Agency did not provide any EEO Counsel ing documents for Agency Cas e No. 200528A52022148464. The only documentation of these claims in the record is in the file for the instant complaint. Therefore, Claims 1 and 2 cannot be dismissed on the grounds that they were previously raised with an EEO Counselor. Assuming, for t he sake of argument, that Complainant did raise the allegations in Claims 1 and 2 under Agency Case No. 200528A52022148464, there is no evidence that he failed to pursue them in a formal EEO complaint. The Agency did not provide a copy of the Notice of Ri ght to File a Formal EEO Complaint for Agency Case No. 200528A52022148464, nor has it shown proof of receipt by Complainant. See Paoletti v. United States Postal Serv. , EEOC Request No. 05950259 (Aug. 17, 1995) (to establish untimely fi ling an agency must demonstrate that the complainant received the Notice of Right to File , and that the Notice clearly informed the complainant of the filing deadline .) The Agency also offers no documentation supporting its assertion that Agency Case No. 200528A52022148464 was administratively close d on December 13, 2022, or that Complainant was notified of the closure.3 Pending Litigation The r egulation found at 29 C.F.R. § 1614.107 ( a)(3) requires the dismissal of an EEO complaint that is the basis of a pending civil ac tion in a United States District Court in which the complainant is a party. Commission regulations mandate dismissal of the EEO complaint under these circumstances to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating t he potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. Management failed to take action. As he did not list these in his formal EEO complaint, he is barred from raising them in a future EEO complaint. 3 We cannot ignore the unexplai ned six-month time gap from when Complainant initiated co ntact with an EEO Counselor on or about September 19, 2022, and the EEO Counselor ’s Report dated April 7, 2023. Regardless of whether Complainant heard from the Agency after his initial September con tact, his prolonged lack of follow up reflects a lack of due diligence . But for the Agency ’s failure to meet its evidentiary burden, we would pres ume Complainant abandoned his claims. We remind Complainant that regardless of whether he designated legal representation, he is responsible for proceeding his EEO complaint at all times . See 29 C.F.R. §1614.605(e). See Katina R. v. Equal Employment Opportunity Commis sion, EEOC Request No. 0520160272 (Aug. 3, 2016) citing Baylink v. Dep’t of Veterans Affairs , EEOC Requ est No. 0520070666 (Nov. 26, 2007) other ci tations omitted. Complainant ’s attorne y did not respond to the Agency’ s req uest for clarification on her reference to “pending li tigation ,” and ther e is no documentation in the record that Complainant ’s allegations were raised in a civil action. We cannot affirm dism issal pursuant to 29 C .F.R. § 1614.107 (a)(3) . However, if Complainant has raised the allegations in th e instant complaint in another venue , he must notify the Agency and the EEOC compliance officer assigned to this complaint immediately . CONCLUSION Accordingly, the Agency's final deci sion dismissing Complainant's complaint is R EVERSED . We hereby R EMAND the matter to the Agency for further processing in accorda nce with th is Decision and the Order b elow. ORDER (E0224) The Agency is ordered to process the remanded claims in a ccordance with 29 C.F.R. § 1614.108 et seq . The Agency shall acknowledge to the Compl ainant that it has received the remanded claims with in thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of th e investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this deci sion 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 six ty (60) days of receipt of Complainant’s request. As pr ovided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compli ance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a c opy of the Agency’s notice that transmits the investiga tive file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, or a copy of the fina l agency decision (“FAD”) if Complainant does not request a hearing . IMPLEMENTATIO N 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) c alendar days of the completion of each ordered corrective action, the Agency shall subm it via the Federal Sector EEO Portal (FedSEP) supporting documen ts 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 forma t required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporti ng documentatio n when previously not uploaded, and the Agency must send a copy of all s ubmissions 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 enforc ement of th e order. 29 C.F.R. § 1614.503(a). The Complainant also has the right t o 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 fi le a civil action on the underlying complaint in accordance w ith the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil a ction for e nforcement or a civil action on the underlying complaint is subject to t he 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 a ny p etition 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 matt er to the Offic e of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERAT ION (M0124.1) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submit s a written request that contains arguments or evidence that tend to est ablish that: 1. The appellate decision involved a clearly erro neous interpretation of material fact or law; or 2. The appellate decision will have a substantial impa ct on the polic ies, practices, or operations of the agency. Requests for reconsiderati on must be filed with EEOC’s Office of Federal Operations (OF O) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration el ects to file a statement or brief in support of the request, that statement or brief mu st 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. Pa rt 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit their request for reconsid eration, and any statement or brief in support of their request, via the EEOC P ublic Portal, which can be found at https://publicportal.eeoc.gov/P ortal/Login.aspx Alternatively, Complain ant can submit their request and arguments to the Director, Office of Federal Operation s, 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, Washi ngton, 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 w ithin five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency ’s request for recons ideration must be submitted in digital format via the EEOC’s Feder al Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Ei ther party’s request and/or statement or brief in opposition must also include proof of service on the ot her party, unless Com plainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within th e 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unl ess extenuating circu mstances prevented the timely filing of the request. Any supporti ng documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline onl y in very limited cir cumstances. See 29 C.F.R. § 1614.604(f) . COMPLAINANT’S RIGHT TO F ILE A CIVIL ACTION (R0124) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil act ion, you have t he rig ht to file such action in an appropriate United States District Co urt 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) calend ar days of the da te 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 their full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” m eans the national organization, and not the local office, facility or department in which you work. Filing a civil action wil l 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 wit h the civil actio n without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you m ay request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or app ointment of an at torney 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 COMMIS SION: Carlton M. Ha dden’s signature Carlton M. Hadden, Director Office of Federal Operations April 4, 2024 Date	[ "Cobb v. Dep’t of the Treas. , EEOC Request No. 05970077 (Mar, 13, 1997)", "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. Dep’t ...	[ -0.06751024723052979, 0.09452925622463226, 0.015232780016958714, 0.003463414264842868, 0.009215105324983597, 0.07039879262447357, 0.01956864260137081, -0.0248347707092762, 0.01850869134068489, 0.02202955260872841, 0.06009748578071594, 0.007210301700979471, -0.04806927219033241, 0.016267020...
11	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a50468.txt	01a50468.txt	TXT	text/plain	7,244	Debra Rethaber v. Department of Veterans Affairs 01A50468 February 10, 2005 . Debra Rethaber, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.	February 10, 2005	Appeal Number: 01A50468 Complaint Allegations: In her complaint, complainant alleged that she was subjected to discrimination on the bases of religion (Jewish), age (D.O.B. 9/7/54) and disability when the agency failed to provide her with an appropriate accommodation to perform her duties. Legal Analysis: The Commission is not persuaded by complainant's arguments that she was not provided an opportunity to explain her claim to the EEO counselor. Complainant was provided training regarding the EEO process. Complainant does not dispute that she was aware of the regulatory requirements for EEO counseling or that she was notified of her responsibility to participate in EEO counseling. Complainant continued to refuse to engage in EEO counseling. Final Decision: Accordingly, the agency's final decision is AFFIRMED.	Debra Rethaber v. Department of Veterans Affairs 01A50468 February 10, 2005 . Debra Rethaber, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A50468 Agency No. 2003-0362-2004102737 DECISION Complainant filed a timely appeal with this Commission from the agency's decision dated September 3, 2004, 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., 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 on the bases of religion (Jewish), age (D.O.B. 9/7/54) and disability when the agency failed to provide her with an appropriate accommodation to perform her duties. The agency dismissed the complaint for failing to consult with an EEO counselor prior to filing a formal complaint. See 29 C.F.R. § 1614.107(a)(2). The record reveals that complainant initially contacted the Regional EEO Officer on May 13 , 2004, requesting that an EEO counselor be assigned to her. The EEO counselor stated in the counseling report that she called complainant and left messages on May 13 and 14, 2004. In response to her messages, she contended that complainant contacted her on May 14, 2004, and told her that she was going to retain an attorney. The EEO counselor contended that complainant told her that she would not provide any information regarding her complaint at this time but once the attorney was retained, he or she would contact her (the EEO counselor). The EEO counselor stated that she waited for approximately one week and did not hear from either complainant or her attorney. She stated that she called complainant at home, and complainant hung the phone up on her. Thereafter, she stated that she mailed complainant a Failure to Respond letter, giving complainant five days to respond. The record reveals that the Failure to Respond letter was returned from complainant's address of record as refused. The EEO counselor stated that complainant failed to respond to her letter, and she reissued the failure to respond letter and issued complainant a Notice of Right to File a Formal Complaint letter. The record reveals that complainant filed a formal complaint on June 25, 2004. On appeal, complainant states that the EEO counselor was aggressive, confrontational and condescending when she initiated contact by telephone. Complaint asserts that the EEO counselor blamed her for the complaint and for not trying to resolve the complaint in an informal manner. Complainant stated that, because of this, she told the EEO counselor that she was going to obtain an attorney before she would discuss anything with her. The agency reiterates arguments previously raised in the FAD and requests that the FAD be affirmed. The record reveals that complainant attended a New Employees Orientation on December 2, 2002, in which she received EEO training which included guidance on the informal EEO process. The Commission is not persuaded by complainant's arguments that she was not provided an opportunity to explain her claim to the EEO counselor. Complainant was provided training regarding the EEO process. Complainant does not dispute that she was aware of the regulatory requirements for EEO counseling or that she was notified of her responsibility to participate in EEO counseling. Complainant continued to refuse to engage in EEO counseling. 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 February 10, 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", "29 U.S.C. § 621", "29 U.S.C. §§ 791" ]	[ -0.06930255889892578, 0.023522377014160156, -0.03893567621707916, 0.049644213169813156, -0.026851752772927284, 0.14851397275924683, -0.0011043199338018894, -0.03423094376921654, 0.010116428136825562, 0.003737302031368017, 0.010585520416498184, 0.05446416884660721, -0.047726117074489594, 0....
12	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131538.pdf	0120131538.pdf	PDF	application/pdf	14,285	, Complainant, v. Chuck Hagel, Secretary, Department of Defense, (Uniformed Services University of the Health Sciences) Agency.	February 6, 2013	Appeal Number: 0120131538 Background: In a letter dated September 10, 2012, Complainant initiated contact with the Agency’s EEO Office regarding a complaint of discrimination and harassment based on his age and disability. Complainant provided a 16- page account describing the alleged harassment and corrective action he sought as resolution for his complaint . Complainant designated Person A as his representative. Thereafter, the EEO Counselor attempted to schedule a meeting with Complainant to discuss his complaint . On September 17, 2012, the EEO Director contacted Complainant via electronic mail and informed him that she had informed his representative that she needed clarification of his requested resolution for his complaint. On October 4, 2012, Complainant responded to the EEO Director informing her that he did not respond to her request sooner due to a death in his family. Complainant stated that he just returned to work on Monday, October 1, 2012. He noted that the Agency’s electronic mail system was having problems that week; however, he stated he would forward the requested informati on to his representative. In an October 12, 2012 electronic mail message, the EEO Director acknowledged receiving additional information regarding Complainant ’s complaint. Additionally, t he EEO Director stated that once Complainant has the initial interv iew with the EEO Counselor, the Agency will process his complaint. In an October 17, 2012 electronic mail message, Complainant informed the EEO Director that Person A was no longer his representative. He stated that he would contact the EEO Counselor soon regarding a date for the initial intake meeting. The record contains a letter dated October 16, 2012, from Complainant addressed to the EEO Counselor. I n the letter, Complainant stated he just returned to work today and requested to meet with the EEO C ounselor that week. Complainant stated he was including the in formation he initially provided to the EEO Director in September 2012. In an October 24, 2012 electronic mail message, Person A informed the EEO Director that he was representing Complainant in his discrimination complaint. The record contains an EEO Counselor Contact Form signed by Complainant and dated October 26, 2012. The form indicates it was sent to the EEO Counselor via facsimile and electronic mail. On the form, Complainant designated Person B as his representative. The record contains a Notice of Final Interview and Right to File a Discrimination Complaint dated November 16, 2012. The Notice informed Complainant he had 15 calendar days after his receipt of the Notice to file his formal complaint of discriminatio n. Complainant filed a formal complaint dated November 28, 2012, alleging that the Agency subjected him to discrimination and harassment on the bases of disability, age, and in repr isal for protected EEO activity. On January 3, 2013, the Agency sent Complainant a letter regarding its proposed dismissal of his complaint. The Agency noted Complainant had not yet received counseling on his rights and responsibilities in the EEO process. The Agency stated this was its final attempt to schedule EEO Counsel ing with Complainant and that if there was no response by January 22, 2013, the Agency would dismiss his case. In a January 17, 2013 electronic mail message, Complainant declined EEO Counseling. In addition, Complainant noted that he had already filed a formal complaint of discrimination on November 28, 2012. On February 6, 2013, the Agency issued a final agency decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to participate in the EEO administrative process. The Agency noted that on September 12, 2012, Complainant’s informal complaint was received by the Agency regarding his claim of discrimination based on age and disability. The Agency stated that several attempts had been made through the electro nic mail system dated September 27, 2012, October 4, 2012, and October 12, 2012, informing Complainant of the EEO Counselor assigned to his complaint and that he must meet with the EEO Counselor. The Agency stated that since Complainant had not participat ed in the EEO administrative process, it mailed him a Notice of Final Interview. The Agency acknowledged Complainant then filed his formal complaint of discrimination. The Agency stated it mailed Complainant a proposed dismissal letter requesting he participate in EEO Counseling. The Agency noted it received Complainant’s January 17, 2013 electronic mail message stating he declined to participate in counseling. Thus, the Agency stated it was dismissing Complainant’s complaint. Legal Analysis: the Commission REVERSES the Agency’s final decision. BACKGROUND In a letter dated September 10, 2012, Complainant initiated contact with the Agency’s EEO Office regarding a complaint of discrimination and harassment based on his age and disability. Complainant provided a 16- page account describing the alleged harassment and corrective action he sought as resolution for his complaint . Complainant designated Person A as his representative. Thereafter, the EEO Counselor attempted to schedule a meeting with Complainant to discuss his complaint . On September 17, 2012, the EEO Director contacted Complainant via electronic mail and informed him that she had informed his representative that she needed clarification of his requested resolution for his complaint. On October 4, 2012, Complainant responded to the EEO Director informing her that he did not respond to her request sooner due to a death in his family. Complainant stated that he just returned to work on Monday, October 1, 2012. He noted that the Agency’s electronic mail system was having problems that week; however, he stated he would forward the requested informati on to his representative. In an October 12, 2012 electronic mail message, the EEO Director acknowledged receiving additional information regarding Complainant ’s complaint. Additionally, t he EEO Director stated that once Complainant has the initial interv iew with the EEO Counselor, the Agency will process his complaint. In an October 17, 2012 electronic mail message, Complainant informed the EEO Director that Person A was no longer his representative. He stated that he would contact the EEO Counselor soon regarding a date for the initial intake meeting. The record contains a letter dated October 16, 2012, from Complainant addressed to the EEO Counselor. I n the letter, Complainant stated he just returned to work today and requested to meet with the EEO C ounselor that week. Complainant stated he was including the in formation he initially provided to the EEO Director in September 2012. In an October 24, 2012 electronic mail message, Person A informed the EEO Director that he was representing Complainant in his discrimination complaint. The record contains an EEO Counselor Contact Form signed by Complainant and dated October 26, 2012. The form indicates it was sent to the EEO Counselor via facsimile and electronic mail. On the form, Complainant designated Person B as his representative. The record contains a Notice of Final Interview and Right to File a Discrimination Complaint dated November 16, 2012. The Notice informed Complainant he had 15 calendar days after his receipt of the Notice to file his formal complaint of discriminatio n. Complainant filed a formal complaint dated November 28, 2012, alleging that the Agency subjected him to discrimination and harassment on the bases of disability, age, and in repr isal for protected EEO activity. On January 3, 2013, the Agency sent Complainant a letter regarding its proposed dismissal of his complaint. The Agency noted Complainant had not yet received counseling on his rights and responsibilities in the EEO process. The Agency stated this was its final attempt to schedule EEO Counsel ing with Complainant and that if there was no response by January 22, 2013, the Agency would dismiss his case. In a January 17, 2013 electronic mail message, Complainant declined EEO Counseling. In addition, Complainant noted that he had already filed a formal complaint of discrimination on November 28, 2012. On February 6, 2013, the Agency issued a final agency decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to participate in the EEO administrative process. The Agency noted that on September 12, 2012, Complainant’s informal complaint was received by the Agency regarding his claim of discrimination based on age and disability. The Agency stated that several attempts had been made through the electro nic mail system dated September 27, 2012, October 4, 2012, and October 12, 2012, informing Complainant of the EEO Counselor assigned to his complaint and that he must meet with the EEO Counselor. The Agency stated that since Complainant had not participat ed in the EEO administrative process, it mailed him a Notice of Final Interview. The Agency acknowledged Complainant then filed his formal complaint of discrimination. The Agency stated it mailed Complainant a proposed dismissal letter requesting he participate in EEO Counseling. The Agency noted it received Complainant’s January 17, 2013 electronic mail message stating he declined to participate in counseling. Thus, the Agency stated it was dismissing Complainant’s 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 so EEO counseling may be provided. EEOC Regulation 29 C.F.R. § 1614.105( d) provides that unless the aggrieved person agrees t o a longer counseling period, or the aggrieved person chooses an alternative dispute resolution procedure , the Counselor shall conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person contacted the agency's EEO office to request counseling. If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint. Id. Both parties agree that Complainant initiated the EEO process by September 12, 2012. The record is clear that the Agency was at tempting to provide EEO counseling, but had not yet done so when Complainant filed the instant complaint. The record reveals that the 30- day period for providing counseling had expired by the time Complainant filed his formal complaint. We note Complainant did not object to participating in EEO Counseling until after he filed his formal complaint. Upon review, we find the Agency’s dismissal of Complainant’s complaint for failure to participate in the administrative process was improper and we reverse the Agency’s dismissal . In both his pre -complaint and formal complaint, Complainant provided a detailed account of his claim of discrimination and harassment. Thus, we do not find that further EEO Counseling in the present case is warranted and we remand th e matter for investigation. However, we note that to the extent the Agency contacts Complainant to clarify the allegations raised, we remind Complainant he is to cooperate with the Agency . Additionally, we remind Complainant he is required to cooperate d uring the investigation of his complaint.	, Complainant, v. Chuck Hagel, Secretary, Department of Defense, (Uniformed Services University of the Health Sciences) Agency. Appeal No. 0120131538 Agency No. USU- 12-006 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated February 6, 2013, 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. For the following reasons, the Commission REVERSES the Agency’s final decision. BACKGROUND In a letter dated September 10, 2012, Complainant initiated contact with the Agency’s EEO Office regarding a complaint of discrimination and harassment based on his age and disability. Complainant provided a 16- page account describing the alleged harassment and corrective action he sought as resolution for his complaint . Complainant designated Person A as his representative. Thereafter, the EEO Counselor attempted to schedule a meeting with Complainant to discuss his complaint . On September 17, 2012, the EEO Director contacted Complainant via electronic mail and informed him that she had informed his representative that she needed clarification of his requested resolution for his complaint. On October 4, 2012, Complainant responded to the EEO Director informing her that he did not respond to her request sooner due to a death in his family. Complainant stated that he just returned to work on Monday, October 1, 2012. He noted that the Agency’s electronic mail system was having problems that week; however, he stated he would forward the requested informati on to his representative. In an October 12, 2012 electronic mail message, the EEO Director acknowledged receiving additional information regarding Complainant ’s complaint. Additionally, t he EEO Director stated that once Complainant has the initial interv iew with the EEO Counselor, the Agency will process his complaint. In an October 17, 2012 electronic mail message, Complainant informed the EEO Director that Person A was no longer his representative. He stated that he would contact the EEO Counselor soon regarding a date for the initial intake meeting. The record contains a letter dated October 16, 2012, from Complainant addressed to the EEO Counselor. I n the letter, Complainant stated he just returned to work today and requested to meet with the EEO C ounselor that week. Complainant stated he was including the in formation he initially provided to the EEO Director in September 2012. In an October 24, 2012 electronic mail message, Person A informed the EEO Director that he was representing Complainant in his discrimination complaint. The record contains an EEO Counselor Contact Form signed by Complainant and dated October 26, 2012. The form indicates it was sent to the EEO Counselor via facsimile and electronic mail. On the form, Complainant designated Person B as his representative. The record contains a Notice of Final Interview and Right to File a Discrimination Complaint dated November 16, 2012. The Notice informed Complainant he had 15 calendar days after his receipt of the Notice to file his formal complaint of discriminatio n. Complainant filed a formal complaint dated November 28, 2012, alleging that the Agency subjected him to discrimination and harassment on the bases of disability, age, and in repr isal for protected EEO activity. On January 3, 2013, the Agency sent Complainant a letter regarding its proposed dismissal of his complaint. The Agency noted Complainant had not yet received counseling on his rights and responsibilities in the EEO process. The Agency stated this was its final attempt to schedule EEO Counsel ing with Complainant and that if there was no response by January 22, 2013, the Agency would dismiss his case. In a January 17, 2013 electronic mail message, Complainant declined EEO Counseling. In addition, Complainant noted that he had already filed a formal complaint of discrimination on November 28, 2012. On February 6, 2013, the Agency issued a final agency decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to participate in the EEO administrative process. The Agency noted that on September 12, 2012, Complainant’s informal complaint was received by the Agency regarding his claim of discrimination based on age and disability. The Agency stated that several attempts had been made through the electro nic mail system dated September 27, 2012, October 4, 2012, and October 12, 2012, informing Complainant of the EEO Counselor assigned to his complaint and that he must meet with the EEO Counselor. The Agency stated that since Complainant had not participat ed in the EEO administrative process, it mailed him a Notice of Final Interview. The Agency acknowledged Complainant then filed his formal complaint of discrimination. The Agency stated it mailed Complainant a proposed dismissal letter requesting he participate in EEO Counseling. The Agency noted it received Complainant’s January 17, 2013 electronic mail message stating he declined to participate in counseling. Thus, the Agency stated it was dismissing Complainant’s 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 so EEO counseling may be provided. EEOC Regulation 29 C.F.R. § 1614.105( d) provides that unless the aggrieved person agrees t o a longer counseling period, or the aggrieved person chooses an alternative dispute resolution procedure , the Counselor shall conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person contacted the agency's EEO office to request counseling. If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint. Id. Both parties agree that Complainant initiated the EEO process by September 12, 2012. The record is clear that the Agency was at tempting to provide EEO counseling, but had not yet done so when Complainant filed the instant complaint. The record reveals that the 30- day period for providing counseling had expired by the time Complainant filed his formal complaint. We note Complainant did not object to participating in EEO Counseling until after he filed his formal complaint. Upon review, we find the Agency’s dismissal of Complainant’s complaint for failure to participate in the administrative process was improper and we reverse the Agency’s dismissal . In both his pre -complaint and formal complaint, Complainant provided a detailed account of his claim of discrimination and harassment. Thus, we do not find that further EEO Counseling in the present case is warranted and we remand th e matter for investigation. However, we note that to the extent the Agency contacts Complainant to clarify the allegations raised, we remind Complainant he is to cooperate with the Agency . Additionally, we remind Complainant he is required to cooperate d uring the investigation of his complaint. CONCLUSION Accordingly, the Agency’s final decision is REVERSED and the complaint is REMANDED for further processing in accordance with the Order listed herein . ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final . The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resol ved 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 doe s 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 C omplainant 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 dis cretion, 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 thirt y (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 requ est 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) 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 (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 with out 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 so le 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 Date February 21, 2014	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.105", "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)", "29 U.S.C. § 621", "42 U.S.C. § 2000e",...	[ -0.07055068016052246, 0.10233782231807709, -0.024552321061491966, 0.018610848113894463, -0.002530890516936779, 0.05501808598637581, 0.01111043430864811, -0.01491701789200306, -0.0402970016002655, 0.03578430041670799, 0.031079083681106567, 0.012727579101920128, 0.001053591724485159, 0.02128...
13	https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024001524.pdf	2024001524.pdf	PDF	application/pdf	13,367	Shondra S,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency.	December 22, 2023	Appeal Number: 2024001524 Background: During the period at issue , Complainant worked as a Supervisory Nuclear Engineer at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. On March 22, 2021, Complainant contacted her local Administrative Investigations office (Code 100i) regarding claims that she was being denied management training. On May 4 , 2021, Complainant asked Code 100i Manager whether she should be going to EEO with her issue. T he Code 100i Manager responded by advising Complainant “You always have the right to go to EEO if you believe you have an EEO complaint.” On May 6, 2021, Complainant initiated contact with an EEO Counselor. On June 17, 2021, Complainant told the EEO office that that she did not want to pursue a claim. The EEO office deemed the matter closed on June 22, 2021. On March 4, 2022, Complainant contacted the EEO office to pursue her harassment claim (Claim 1). Thereafter, Complainant claimed to have discussed her EEO claim with various colleagues and Agency officials who had dissuaded her from EEO activity between March 2021 and October 2022. The parties were unable to resolve Complainant’s discrimination allegations through informal EEO counseling. On June 12, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior EEO -protected activity (2018 EEO compliant). Complainant’s claims have been framed as follows: 1.a. On March 19, 2021, Complainant’s supervisor, Nuclear Production Manager, subjected her to unwanted touching, used his body to corner her and said that he could “go up and over, behind, or down”; 1.b. On September 07, 2021, Nuclear Production Manager stated “Yeah, she (Complainant) takes care of me too,” with a sexual connotation in front of a group of management officials; 1.c. On October 15, 2021, Nuclear Production Manager made gestures towards Complainant indicating he was watching her, put his arms around her (which was unwelcome), reminded her of the incident on March 19, 2021, and whispered “you’re drunk” to her after she had rebuffed his advances. 3 2024001524 2.a. In March 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent t old Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; 2.b. In September 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent told Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; and 2.c. From October 2021 to June 12, 2022, former Project Refueling Manager, Complainant’s mentor, Operations Program Manager , former Shipyard Commander, Code 100i Investigator, and Code 100i Manager provided her with information that steered her away from filing an EEO complaint and did not adequately explain to her that filing a complaint with the Administrative Investigations office did not also protected an employee’s right to file an EEO Complaint. Following an investigation, the Agency issued Complainant a copy of the investigative report and provided her notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On August 22, 2023, the Agency filed a motion to dismiss based on untimely EEO C ounselor contact. Complainant opposed the Agency’s motion on September 9, 2023. On November 15, 2023, the AJ assigned to the case granted the Agency’s motion and issued an order dismissing the formal complaint. On December 22, 2023, the Agency issued a final order implementing the AJ’s dismissal. CONTENTIONS ON APPEAL On appeal, Complainant, through Counsel , has contended that the A J’s 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 untimely EEO Counselor contact. ISSUES PRESENTED Whether the Agency’s final order and AJ’s decision properly dismiss ed the formal complaint for untimely EEO Counselor contact. 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 2024001524 BACKGROUND During the period at issue , Complainant worked as a Supervisory Nuclear Engineer at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. On March 22, 2021, Complainant contacted her local Administrative Investigations office (Code 100i) regarding claims that she was being denied management training. On May 4 , 2021, Complainant asked Code 100i Manager whether she should be going to EEO with her issue. T he Code 100i Manager responded by advising Complainant “You always have the right to go to EEO if you believe you have an EEO complaint.” On May 6, 2021, Complainant initiated contact with an EEO Counselor. On June 17, 2021, Complainant told the EEO office that that she did not want to pursue a claim. The EEO office deemed the matter closed on June 22, 2021. On March 4, 2022, Complainant contacted the EEO office to pursue her harassment claim (Claim 1). Thereafter, Complainant claimed to have discussed her EEO claim with various colleagues and Agency officials who had dissuaded her from EEO activity between March 2021 and October 2022. The parties were unable to resolve Complainant’s discrimination allegations through informal EEO counseling. On June 12, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior EEO -protected activity (2018 EEO compliant). Complainant’s claims have been framed as follows: 1.a. On March 19, 2021, Complainant’s supervisor, Nuclear Production Manager, subjected her to unwanted touching, used his body to corner her and said that he could “go up and over, behind, or down”; 1.b. On September 07, 2021, Nuclear Production Manager stated “Yeah, she (Complainant) takes care of me too,” with a sexual connotation in front of a group of management officials; 1.c. On October 15, 2021, Nuclear Production Manager made gestures towards Complainant indicating he was watching her, put his arms around her (which was unwelcome), reminded her of the incident on March 19, 2021, and whispered “you’re drunk” to her after she had rebuffed his advances. 3 2024001524 2.a. In March 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent t old Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; 2.b. In September 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent told Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; and 2.c. From October 2021 to June 12, 2022, former Project Refueling Manager, Complainant’s mentor, Operations Program Manager , former Shipyard Commander, Code 100i Investigator, and Code 100i Manager provided her with information that steered her away from filing an EEO complaint and did not adequately explain to her that filing a complaint with the Administrative Investigations office did not also protected an employee’s right to file an EEO Complaint. Following an investigation, the Agency issued Complainant a copy of the investigative report and provided her notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On August 22, 2023, the Agency filed a motion to dismiss based on untimely EEO C ounselor contact. Complainant opposed the Agency’s motion on September 9, 2023. On November 15, 2023, the AJ assigned to the case granted the Agency’s motion and issued an order dismissing the formal complaint. On December 22, 2023, the Agency issued a final order implementing the AJ’s dismissal. CONTENTIONS ON APPEAL On appeal, Complainant, through Counsel , has contended that the A J’s decision was improper for two reasons . First, Counsel argues that the Agency had waived dismissal based on untimely EEO C ounselor contact . Counsel cite s MD-110’s statement that a n agency's authority to dismiss a complaint under 29 C.F.R. 1614.107(a) ended when a complainant requests a hearing. Second, Counsel argued that Complainant ’s deadline for making EEO Counselor contact should be equitably tolled because she was reasonably confused into believing that her administrative complaint with 100i would proceed in conjunction with the EEO process. 4 2024001524 As to Complainant’s first argument, the Agency asserted that the Agency was not precluded from filing a motion to dismiss and the AJ had authority to grant the motion based on untimely EEO Counselor contact. Regarding Complainant’s second contention, the Agency cited Stan H. v. U.S. Dep’t of Homeland Sec ., EEOC Appeal No. 2022000826 (Apr. 18, 2023) for holding that EEO consultations with co -workers or managers, do not toll applicable time limits for complainants to contact an EEO Counselor. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its inter pretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. ANALYSIS As an initial matter , MD-110 prevented the Agency from unilaterally dismissing Complainant’s complaint on procedural grounds after she had requested a hearing . However , during the hearing that followed the request , nothing barred the Agency’s motion to dismiss n or limited the AJ from granting such motion. Concerning Claims 1.a. through 1.c., t he record discloses that the latest allegedly d iscriminatory event occurred on October 15, 2021, but Complainant did not initiate contact with an EEO Counselor with the intent to pursue the EEO complaint process until March 4, 2022, which is beyond the forty -five- day limitation period. With respect to Claims 2.a. through 2.c., we concur with the AJ in that the record contained no evidence that the Agency somehow misled Complainant or dissuaded her from making timely EEO Counselor contact. In fact , the record contains an acknowledgement form that was jointly initialed by Complainant and the Code 110i Investigator in October 2021, and that specified that Code 110i was not an EEO investigation . The acknowledgement form reminded Complainant of the 45 -day deadline for contacting an EEO Counselor and provided contact information for doing so. 5 2024001524 We are u nconvinced by Complainant’s appellate argument that she was distraught when she signed the a cknowledgement form. Complainant has not shown that she was somehow incapacitated to the extent that she could not comprehend the acknowledgement form. We find that Complainant ’s appeal has failed to present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUS ION	Shondra S,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2024001524 Hearing No. 551- 2023- 00020X Agency No. 22 -4523A -00630 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated December 22, 2023, implementing the dismissal by an Administrative Judge (AJ), of the 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. 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. ISSUES PRESENTED Whether the Agency’s final order and AJ’s decision properly dismiss ed the formal complaint for untimely EEO Counselor contact. 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 2024001524 BACKGROUND During the period at issue , Complainant worked as a Supervisory Nuclear Engineer at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. On March 22, 2021, Complainant contacted her local Administrative Investigations office (Code 100i) regarding claims that she was being denied management training. On May 4 , 2021, Complainant asked Code 100i Manager whether she should be going to EEO with her issue. T he Code 100i Manager responded by advising Complainant “You always have the right to go to EEO if you believe you have an EEO complaint.” On May 6, 2021, Complainant initiated contact with an EEO Counselor. On June 17, 2021, Complainant told the EEO office that that she did not want to pursue a claim. The EEO office deemed the matter closed on June 22, 2021. On March 4, 2022, Complainant contacted the EEO office to pursue her harassment claim (Claim 1). Thereafter, Complainant claimed to have discussed her EEO claim with various colleagues and Agency officials who had dissuaded her from EEO activity between March 2021 and October 2022. The parties were unable to resolve Complainant’s discrimination allegations through informal EEO counseling. On June 12, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior EEO -protected activity (2018 EEO compliant). Complainant’s claims have been framed as follows: 1.a. On March 19, 2021, Complainant’s supervisor, Nuclear Production Manager, subjected her to unwanted touching, used his body to corner her and said that he could “go up and over, behind, or down”; 1.b. On September 07, 2021, Nuclear Production Manager stated “Yeah, she (Complainant) takes care of me too,” with a sexual connotation in front of a group of management officials; 1.c. On October 15, 2021, Nuclear Production Manager made gestures towards Complainant indicating he was watching her, put his arms around her (which was unwelcome), reminded her of the incident on March 19, 2021, and whispered “you’re drunk” to her after she had rebuffed his advances. 3 2024001524 2.a. In March 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent t old Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; 2.b. In September 2021, former Project Refueling Manager, a coworker witness and, and a Project Superintendent told Complainant “it’s not worth your career” when she went to discuss reporting her supervisor’s harassing conduct; and 2.c. From October 2021 to June 12, 2022, former Project Refueling Manager, Complainant’s mentor, Operations Program Manager , former Shipyard Commander, Code 100i Investigator, and Code 100i Manager provided her with information that steered her away from filing an EEO complaint and did not adequately explain to her that filing a complaint with the Administrative Investigations office did not also protected an employee’s right to file an EEO Complaint. Following an investigation, the Agency issued Complainant a copy of the investigative report and provided her notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On August 22, 2023, the Agency filed a motion to dismiss based on untimely EEO C ounselor contact. Complainant opposed the Agency’s motion on September 9, 2023. On November 15, 2023, the AJ assigned to the case granted the Agency’s motion and issued an order dismissing the formal complaint. On December 22, 2023, the Agency issued a final order implementing the AJ’s dismissal. CONTENTIONS ON APPEAL On appeal, Complainant, through Counsel , has contended that the A J’s decision was improper for two reasons . First, Counsel argues that the Agency had waived dismissal based on untimely EEO C ounselor contact . Counsel cite s MD-110’s statement that a n agency's authority to dismiss a complaint under 29 C.F.R. 1614.107(a) ended when a complainant requests a hearing. Second, Counsel argued that Complainant ’s deadline for making EEO Counselor contact should be equitably tolled because she was reasonably confused into believing that her administrative complaint with 100i would proceed in conjunction with the EEO process. 4 2024001524 As to Complainant’s first argument, the Agency asserted that the Agency was not precluded from filing a motion to dismiss and the AJ had authority to grant the motion based on untimely EEO Counselor contact. Regarding Complainant’s second contention, the Agency cited Stan H. v. U.S. Dep’t of Homeland Sec ., EEOC Appeal No. 2022000826 (Apr. 18, 2023) for holding that EEO consultations with co -workers or managers, do not toll applicable time limits for complainants to contact an EEO Counselor. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its inter pretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. ANALYSIS As an initial matter , MD-110 prevented the Agency from unilaterally dismissing Complainant’s complaint on procedural grounds after she had requested a hearing . However , during the hearing that followed the request , nothing barred the Agency’s motion to dismiss n or limited the AJ from granting such motion. Concerning Claims 1.a. through 1.c., t he record discloses that the latest allegedly d iscriminatory event occurred on October 15, 2021, but Complainant did not initiate contact with an EEO Counselor with the intent to pursue the EEO complaint process until March 4, 2022, which is beyond the forty -five- day limitation period. With respect to Claims 2.a. through 2.c., we concur with the AJ in that the record contained no evidence that the Agency somehow misled Complainant or dissuaded her from making timely EEO Counselor contact. In fact , the record contains an acknowledgement form that was jointly initialed by Complainant and the Code 110i Investigator in October 2021, and that specified that Code 110i was not an EEO investigation . The acknowledgement form reminded Complainant of the 45 -day deadline for contacting an EEO Counselor and provided contact information for doing so. 5 2024001524 We are u nconvinced by Complainant’s appellate argument that she was distraught when she signed the a cknowledgement form. Complainant has not shown that she was somehow incapacitated to the extent that she could not comprehend the acknowledgement form. We find that Complainant ’s appeal has failed to present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. CONCLUS ION Accordingly, the Agency's final order implementing the AJ’s dismissal of the formal complaint is AFFIRMED . STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0124.1) 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 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 their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 6 2024001524 Alternatively, Complainant can submit their 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 v ia 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 their request via the EEOC Public Portal, in which case no proof of service is require d. Failure to file within the 30 -d ay 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION ( S0124) 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. Failu re to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the l ocal 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. 7 2024001524 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 October 23, 2024 Date	[ "Stan H. v. U.S. Dep’t of Homeland Sec ., EEOC Appeal No. 2022000826 (Apr. 18, 2023)", "Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "29 C.F.R. § 1614.403(g)", "29...	[ -0.1424626260995865, 0.08278200030326843, 0.0006227213889360428, 0.0425264798104763, 0.020581433549523354, 0.02657674252986908, 0.036768313497304916, -0.026100486516952515, 0.04452424868941307, -0.007744600530713797, 0.0687418133020401, 0.0020046429708600044, 0.0009717281791381538, -0.0236...
14	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a35297_r.txt	01a35297_r.txt	TXT	text/plain	12,514	Brien, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.	July 20, 2004	Appeal Number: 01A35297 Legal Analysis: the Commission. The question of whether such an alleged denial is discriminatory is irrelevant to whether there is a violation of 29 C.F.R. §1614.605(b). Moreover, dismissal under 29 C.F.R. §1614.107(a)(2) is inappropriate in the instant circumstances, as EEO counseling concerns discrimination claims. With regard to the dismissal on the grounds of failure to cooperate, we note that the record contains a copy of a March 6, 2003 memorandum from an EEO Counselor to complainant. Therein, the EEO Counselor stated that she wanted to arrange an appointment for counseling and informed complainant that she should respond to the notice within fifteen days. The EEO Counselor further stated that failure to contact within the time period would constitute a decision from complainant not to pursue her complaint. However, the record also contains a pre-complaint form signed by complainant dated January 21, 2003. Therein, complainant listed the alleged incident date and that her claim concerned the denial of official time. The agency's dismissal on the grounds of failure to cooperate was improper as it was based upon the agency's attempt to arrange an EEO counseling appointment. However, as noted above, EEO counseling concerns discrimination claims. Having determined that the agency improperly dismissed the instant complaint for untimely EEO Counselor contact and failure to cooperate, we find that the agency should have issued a decision deciding the merits of whether complainant was improperly denied official time. However, the record in this appeal contains insufficient information to determine whether official time was improperly denied. It is unclear whether complainant is claiming that both she and her representative were denied official time. In its final action, the agency frames complainant's claim solely as to whether complainant's representative was denied official time to assist complainant in EEO matters; however, complainant's formal complaint suggests that complainant is also claiming that she was denied official time. Furthermore, we note that the record contains a memorandum dated January 30, 2003, from an agency official stating that complainant's representative has been granted 41.5 hours to work on related EEO cases. However, we note that despite the presence of this memorandum, the record does not reflect how much official time was requested by complainant and/or her representative, and how much of that requested time was denied.	Lisa M. O'Brien v. Department of the Army 01A35297 July 20, 2004 . Lisa M. O'Brien, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A35297 Agency No. ARCEMEM03MAR0062 DECISION Complainant initiated contact with an EEO Counselor on January 21, 2003. On March 27, 2003, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against in reprisal for her previous EEO activity. In her formal complaint, complainant claimed that while filing a previous EEO complaint, less than fifteen minutes were allowed for EEO official representational time to meet alone with her representative throughout the pre-complaint, informal complaint, formal complaint process, and the beginning of mediation. The agency framed the alleged incident as being on December 4, 2002, complainant's representative was denied official time to prepare her EEO complaint. By decision dated August 1, 2003, 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 did not initiate contact with an EEO Counselor until January 21, 2003, 48 days after the alleged discrimination occurred. The agency also dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(7), on the grounds of failure to cooperate. The agency stated that complainant was issued a memorandum giving her fifteen days to contact the EEO Office, but that neither complainant nor her representative arranged an appointment. On appeal, complainant maintains that her EEO contact was timely since the 45th day fell on a Saturday and the following Monday was a federal holiday. With regard to the dismissal on the grounds of failure to cooperate, complainant's representative states that when the EEO Counselor initially contacted her to schedule a meeting, she requested that the EEO Manager provide another EEO Counselor since the EEO Counselor who contacted her was closely involved in the denial of official time. Complainant's representative states that her request for another EEO Counselor was denied. In response, the agency asserts that complainant's EEO contact was untimely given that the date of denial of the official time request was December 4, 2002, and the initial EEO contact was January 21, 2003, more than 45 days after the denial. As for its position that complainant failed to cooperate, the agency maintains that it issued three requests to complainant to contact the EEO Counselor, but that complainant did not comply. The agency states that complainant had no contact with the EEO Counselor to pursue the processing of her complaint after her initial EEO contact. Claims of denial of official time under 29 C.F.R. §1614.605(b) may be adjudicated by the Commission. The question of whether such an alleged denial is discriminatory is irrelevant to whether there is a violation of 29 C.F.R. §1614.605(b). Moreover, dismissal under 29 C.F.R. §1614.107(a)(2) is inappropriate in the instant circumstances, as EEO counseling concerns discrimination claims. With regard to the dismissal on the grounds of failure to cooperate, we note that the record contains a copy of a March 6, 2003 memorandum from an EEO Counselor to complainant. Therein, the EEO Counselor stated that she wanted to arrange an appointment for counseling and informed complainant that she should respond to the notice within fifteen days. The EEO Counselor further stated that failure to contact within the time period would constitute a decision from complainant not to pursue her complaint. However, the record also contains a pre-complaint form signed by complainant dated January 21, 2003. Therein, complainant listed the alleged incident date and that her claim concerned the denial of official time. The agency's dismissal on the grounds of failure to cooperate was improper as it was based upon the agency's attempt to arrange an EEO counseling appointment. However, as noted above, EEO counseling concerns discrimination claims. Having determined that the agency improperly dismissed the instant complaint for untimely EEO Counselor contact and failure to cooperate, we find that the agency should have issued a decision deciding the merits of whether complainant was improperly denied official time. However, the record in this appeal contains insufficient information to determine whether official time was improperly denied. It is unclear whether complainant is claiming that both she and her representative were denied official time. In its final action, the agency frames complainant's claim solely as to whether complainant's representative was denied official time to assist complainant in EEO matters; however, complainant's formal complaint suggests that complainant is also claiming that she was denied official time. Furthermore, we note that the record contains a memorandum dated January 30, 2003, from an agency official stating that complainant's representative has been granted 41.5 hours to work on related EEO cases. However, we note that despite the presence of this memorandum, the record does not reflect how much official time was requested by complainant and/or her representative, and how much of that requested time was denied. Accordingly, the agency's decision dismissing complainant's complaint is VACATED and the complaint is REMANDED to the agency for further processing pursuant to the Order herein. ORDER The agency is ORDERED to take the following action: 1. The agency shall meet with complainant to determine whether her claim involves the denial of official time solely to complainant's representative or the denial of official time to both complainant and her representative. 2. The agency shall investigate the issue of whether complainant's representative and complainant, if applicable, were denied a reasonable amount of official time with regard to complainant's EEO activity. The investigation shall not address whether such an alleged denial was discriminatory, but shall only address whether the agency violated 29 C.F.R. §1614.605(b). The agency shall include in the record documentation showing how much time was requested, for what stated purpose, how much time was granted, and the justification for the denial of any requested time. 3. The agency shall notify complainant of the opportunity to place into the record any evidence supporting her claim that she, if applicable, and her representative were denied a reasonable amount of official time. 4. The agency, within 30 calendar days of the date this decision becomes final, shall issue a decision as to whether complainant, if applicable, and her representative were denied a reasonable amount of official time. The agency's decision shall provide appeal rights to the Commission. A copy of the decision 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 July 20, 2004 __________________ Date	[ "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" ]	[ -0.09495415538549423, 0.05622835457324982, 0.05255753919482231, 0.020234564319252968, 0.036204345524311066, -0.007191788405179977, 0.011255077086389065, 0.03089909628033638, 0.014378294348716736, -0.007556366268545389, 0.013402477838099003, -0.046398140490055084, 0.045267630368471146, -0.0...
15	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A55679.txt	01A55679.txt	TXT	text/plain	15,407	James S. Clarry, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.	August 3, 2005	Appeal Number: 01A55679 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.). The agency has not submitted any such evidence. The Commission shall remand the complainant's complaint so the agency may address whether the complainant had actual or constructive knowledge of the time limit for contacting an EEO counselor, and whether he contacted its Civil Rights Office on July 10, 2004. Given the complainant's claim that he was unaware of the 45 day time limit to initiate contact with an EEO counselor but curiously did so on the 44th day, a Saturday and spoke to a person in the Civil Rights Office (when the agency argues it was closed), it is more appropriate to remand the complainant's complaint for more information than to reverse the FAD. The complainant also argues that his claim is timely under the continuing violation rule (or as one hostile work environment). Given his claims on appeal that he initiated EEO contact on July 10, 2004 and was unaware of the 45 calendar day time limit to do so, we will not address his continuing violation/hostile work environment argument in this decision. Instead, these matters will be remanded back to the agency. ORDER The agency is ordered to take the following remedial actions: 1. Investigate whether the complainant contacted its Office of Civil Rights on July 10, 2004. Specifically, the agency shall include in the record documentation regarding this, such as an affidavit by the EEO counselor. 2. Investigate whether the complainant had actual or constructive knowledge of the requisite time limit to timely contact an EEO Counselor. Specifically, the agency shall include in the record a copy of any evidence as to whether EEO information was on display, or was in some other manner provided to complainant, and whether that information specifically referred to the time limit for contacting an EEO Counselor. This, for example, could include an affidavit from a relevant agency official and a copy of an EEO poster. The investigations of the above matters shall include contacting the complainant in writing and providing him an opportunity to provide evidence. 3. Within 60 calendar days of its receipt of this decision, the agency shall complete the above actions and issue a FAD dismissing the entire complaint or notice of acceptance of part or all the complaint. If the agency issues a FAD or only accepts a portion of the complaint, it shall address the information gathered in its investigation as well as the complainant's arguments regarding continuing violation/one hostile work environment in its FAD or notice. A copy of the new FAD or notice of acceptance of part of all the complaint 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.	James S. Clarry, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency. Appeal No. 01A55679 Agency No. DOT-2005-19087-FAA-01 DECISION The complainant filed a timely appeal with this Commission from the agency's decision (FAD) dated August 3, 2005, dismissing 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. The complainant claimed that he was subjected to discrimination based on his age (born in 1946) and reprisal for prior protected EEO activity under the ADEA when he: 1. received, on June 1, 2004, a letter of reprimand dated May 27, 2004, 2. was harassed by co-workers and supervisors, 3. was denied training, and 4. was denied the opportunity to perform the collateral assignments of Controller-in- Charge and On-the-Job training instructor. The FAD dismissed the complaint on the grounds that the complainant failed to timely seek EEO counseling. 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 he was not notified of the time limit and was not otherwise aware of it. In dismissing the complaint, the FAD reasoned that the most recent known date for an alleged discriminatory event was May 27, 2004 (the date may actually be June 1, 2004, when the complainant received the reprimand), and the complainant did not initiate contact with an EEO counselor until July 26, 2004, beyond the 45 calendar day time limitation. On appeal, the complainant argues that the letter of reprimand was a proposed action, and was not finalized until it was reduced to an admonishment on June 17, 2004. Counting from the date of the admonishment, the complainant argues that he timely sought EEO counseling within 45 calendar days of the effective date of the personnel action. After reading the letter of reprimand, we disagree with the complainant's characterization of it as a proposed action. It was a final action with rights to challenge it. The utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). The complainant challenged the reprimand, it was reduced to an admonishment, and the admonishment was not a personnel action. The complainant's argument, in effect, is seeking to challenge the internal grievance procedure, something which constitutes a collateral attack and fails to state a claim. Accordingly, the argument about effective date of personnel action is not persuasive. On appeal, the complainant, who after a break in service has been employed with the agency since 1997, submits an affidavit stating that prior to receiving the FAD, he was unaware of the 45 day time limit to contact an EEO counselor. He contends that there are no signs prominently displaying the 45 day limitation, nor any warning at the facility where he works clearly notifying employees of the time deadline. The FAD, referring to a statement from a civil rights officer, found that an EEO poster is prominently displayed at the facility on an EEO bulletin board outside the cafeteria, and it includes the bases for filing the complaint, the timeframe to contact an EEO counselor, and contact information. The record, however, does not contain this statement or poster. The FAD is not evidence. In an affidavit submitted on appeal, the complainant claims that the counselor's report incorrectly identifies the date of initial EEO counselor contact as July 26, 2004. He states the correct date is July 10, 2004. Specifically, the complainant states that on July 10, 2004, he called the agency's Office of Civil Rights to speak to an EEO counselor, spoke to a person, identified himself, briefly described the alleged discrimination, and gave his cellular telephone number to contact him about his claim. The complainant states that on July 26, 2004, the EEO counselor called him on the cellular telephone number he left. In response, the agency argues that according to its records, the complainant did not contact its Office of Civil Rights on July 10, 2004. It also avers that because July 10, 2004 was a Saturday, the Office would have been closed. The agency's arguments, which are not evidence, are not accompanied by an affidavit or other documentation. The agency notes that in light of the complainant's claim that he was unaware of the 45 day calendar day time limit to initiate contact with an EEO counselor, his claim that he did so on the 45th day (actually the 44th day) must have been a "coincidence." 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.). The agency has not submitted any such evidence. The Commission shall remand the complainant's complaint so the agency may address whether the complainant had actual or constructive knowledge of the time limit for contacting an EEO counselor, and whether he contacted its Civil Rights Office on July 10, 2004. Given the complainant's claim that he was unaware of the 45 day time limit to initiate contact with an EEO counselor but curiously did so on the 44th day, a Saturday and spoke to a person in the Civil Rights Office (when the agency argues it was closed), it is more appropriate to remand the complainant's complaint for more information than to reverse the FAD. The complainant also argues that his claim is timely under the continuing violation rule (or as one hostile work environment). Given his claims on appeal that he initiated EEO contact on July 10, 2004 and was unaware of the 45 calendar day time limit to do so, we will not address his continuing violation/hostile work environment argument in this decision. Instead, these matters will be remanded back to the agency. ORDER The agency is ordered to take the following remedial actions: 1. Investigate whether the complainant contacted its Office of Civil Rights on July 10, 2004. Specifically, the agency shall include in the record documentation regarding this, such as an affidavit by the EEO counselor. 2. Investigate whether the complainant had actual or constructive knowledge of the requisite time limit to timely contact an EEO Counselor. Specifically, the agency shall include in the record a copy of any evidence as to whether EEO information was on display, or was in some other manner provided to complainant, and whether that information specifically referred to the time limit for contacting an EEO Counselor. This, for example, could include an affidavit from a relevant agency official and a copy of an EEO poster. The investigations of the above matters shall include contacting the complainant in writing and providing him an opportunity to provide evidence. 3. Within 60 calendar days of its receipt of this decision, the agency shall complete the above actions and issue a FAD dismissing the entire complaint or notice of acceptance of part or all the complaint. If the agency issues a FAD or only accepts a portion of the complaint, it shall address the information gathered in its investigation as well as the complainant's arguments regarding continuing violation/one hostile work environment in its FAD or notice. A copy of the new FAD or notice of acceptance of part of all the complaint 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 (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 February 24, 2006 __________________ Date	[ "EEO Counselor. Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)", "Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.503(a)", "29 C.F.R. § 1614.503(g)", "29 C.F.R. § 1614.409", "29 C.F.R. § 16...	[ -0.06764104962348938, 0.05721390247344971, -0.010952400043606758, -0.017271768301725388, 0.020814038813114166, 0.03501773253083229, 0.07629255950450897, -0.024210834875702858, -0.07715018838644028, 0.03709098696708679, 0.07976575195789337, -0.011605513282120228, -0.01345328614115715, 0.028...
16	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01990547.r.txt	01990547.r.txt	TXT	text/plain	12,512	Jayne A. Marshall v. Department of Treasury 01990547 January 3, 2001 . Jayne A. Marshall, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.	January 3, 2001	Appeal Number: 01990547 Case Facts: Complainant filed a timely appeal with this Commission from an agency decision dated October 8, 1998, 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 subjected to discrimination on the bases of sex (female) and in reprisal for opposition to alleged discriminatory practices when: On February 12, 1996, complainant's Group Manager, Person A, brought another Special Agent to the office space complainant shared with another female Special Agent and commented, . . . these are our token females; On March 18, 1996, complainant received a negative written caseload review; On May 9, 1996, complainant received an evaluation that she did not agree with; As a result of a May 29, 1996 meeting to resolve her dissatisfaction with her May 9, 1996 evaluation, the written narrative was changed but the basic ratings remained the same, and complainant was denied her request for a reassignment; In August 1997, complainant was told by two Special Agents that her former Group Manager, Person A, provided a written statement to an EEO Counselor in March 1997, in which he refers to her as a pathological liar. 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. Specifically, the agency stated that none of the incidents identified by complainant were raised with an EEO Counselor within the applicable forty-five (45) day time limit. The agency contends that the EEO Bulletin Board contained a posting which explained the EEO processing guidelines, including the requirement to contact an EEO Counselor within 45 days of an alleged discriminatory incident. The agency stated that complainant had a reasonable suspicion of discrimination as early as February 19, 1996, when Person A asked her if she thought that he created a hostile work environment for females. In addition, the agency found that complainant did not establish a continuing violation. With regard to issue (5), the agency dismissed this issue pursuant to the regulation set forth at 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The agency noted that no decision has been issued to bar complainant from testifying in a criminal case. Thus, the agency stated that complainant failed to show a present harm to a term, condition, or privilege of employment. On appeal, complainant, through her attorney, claims that the agency failed to give proper weight to her claim that she was guided not by a sign to which she never paid any particular attention, but by a June 28, 1994 memorandum advising persons having complaints about sexual harassment [to] contact either management or . . . the EEO Program Manager. Complainant alleges that she complied with the memorandum as evidenced by the fact that after she learned of the adverse agency actions on March 18, 1996, May 9, 1996, and May 29, 1996, she contacted management within a timely manner. Complainant states that she complied with the rules as she understood them and argues that where a conflict exists between the printed language on a posted sign that she may or may not have noticed and a memorandum actually distributed to her, it is inequitable to enforce the language of the former. The record contains a copy of the EEO poster on display at complainant's work facility. This poster entitled Your EEO Counselors identifies the agency's EEO Counselors and informs employees that they must contact a counselor within 45 days of the date of the incident of alleged discrimination. The record also contains a signed statement from a former EEO Manager who indicated that this poster was displayed continuously on the EEO Bulletin Board, on the eleventh floor of the Federal Building, from 1993 until the week of September 21, 1998 (minus one week in 1994 during floor remodeling). 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 of the rights and obligations under Title VII will be imputed to a complainant where the agency has fulfilled its statutory duty of conspicuously posting EEO posters informing employees of their rights. See Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996) (citing Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)). 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 the complainant of his or her rights. In addition, the Commission has found that constructive knowledge will not be imputed to a complainant without specific evidence that the posters contained notice of the time limitation for contacting an EEO Counselor. Piccone, EEOC Request No. 05950678 (citing Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993)). In the present case, we find that the agency has shown that it conspicuously posted EEO posters informing employees of their rights. The agency produced a copy of the EEO poster on display at complainant's work facility, which identifies the EEO Counselors and informs employees that they must contact a counselor within 45 days of the date of the incident of alleged discrimination. In addition, the agency produced a signed statement from a former EEO Manager who indicated that this poster was displayed continuously on the EEO Bulletin Board, on the eleventh floor of the Federal Building, from 1993 until the week of September 21, 1998 (minus one week in 1994 during floor remodeling). We note that on appeal, complainant does not claim that she never saw the EEO poster. Instead, complainant states that she may or may not have noticed the poster and in any case she never paid any particular attention to the posting, but relied on a June 28, 1994 memorandum advising persons having complaints about sexual harassment [to] contact either management or . . . the EEO Program Manager. The record reveals that complainant's initial contact with the EEO Office occurred on January 29, 1998. Upon review of the record, we find that complainant had constructive knowledge of the time limit for contacting an EEO Counselor. Furthermore, we find that the June 28, 1994 memorandum from the Dallas District Director to all Dallas District employees properly advised employees that sexual harassment would not be tolerated and that if any one had any questions concerning this policy, or if any one felt victimized by sexual harassment, then that person should notify management or contact the EEO Program Manager. The June 28, 1994 memorandum also provided a toll free number to ensure prompt action on complaints of sexual harassment. There is no indication that complainant was misled by the memorandum or that she attempted to commence the EEO process by contacting management. Since none of the incidents identified by complainant were raised with an EEO Counselor within the applicable forty-five (45) day limitation period, we find her complaint should be dismissed for untimely EEO Counselor contact. Final Decision: Accordingly, the agency's decision to dismiss complainant's complaint was proper and is AFFIRMED.	Jayne A. Marshall v. Department of Treasury 01990547 January 3, 2001 . Jayne A. Marshall, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency. Appeal No. 01990547 Agency No. 98-2164 DECISION Complainant filed a timely appeal with this Commission from an agency decision dated October 8, 1998, 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 subjected to discrimination on the bases of sex (female) and in reprisal for opposition to alleged discriminatory practices when: On February 12, 1996, complainant's Group Manager, Person A, brought another Special Agent to the office space complainant shared with another female Special Agent and commented, . . . these are our token females; On March 18, 1996, complainant received a negative written caseload review; On May 9, 1996, complainant received an evaluation that she did not agree with; As a result of a May 29, 1996 meeting to resolve her dissatisfaction with her May 9, 1996 evaluation, the written narrative was changed but the basic ratings remained the same, and complainant was denied her request for a reassignment; In August 1997, complainant was told by two Special Agents that her former Group Manager, Person A, provided a written statement to an EEO Counselor in March 1997, in which he refers to her as a pathological liar. 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. Specifically, the agency stated that none of the incidents identified by complainant were raised with an EEO Counselor within the applicable forty-five (45) day time limit. The agency contends that the EEO Bulletin Board contained a posting which explained the EEO processing guidelines, including the requirement to contact an EEO Counselor within 45 days of an alleged discriminatory incident. The agency stated that complainant had a reasonable suspicion of discrimination as early as February 19, 1996, when Person A asked her if she thought that he created a hostile work environment for females. In addition, the agency found that complainant did not establish a continuing violation. With regard to issue (5), the agency dismissed this issue pursuant to the regulation set forth at 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The agency noted that no decision has been issued to bar complainant from testifying in a criminal case. Thus, the agency stated that complainant failed to show a present harm to a term, condition, or privilege of employment. On appeal, complainant, through her attorney, claims that the agency failed to give proper weight to her claim that she was guided not by a sign to which she never paid any particular attention, but by a June 28, 1994 memorandum advising persons having complaints about sexual harassment [to] contact either management or . . . the EEO Program Manager. Complainant alleges that she complied with the memorandum as evidenced by the fact that after she learned of the adverse agency actions on March 18, 1996, May 9, 1996, and May 29, 1996, she contacted management within a timely manner. Complainant states that she complied with the rules as she understood them and argues that where a conflict exists between the printed language on a posted sign that she may or may not have noticed and a memorandum actually distributed to her, it is inequitable to enforce the language of the former. The record contains a copy of the EEO poster on display at complainant's work facility. This poster entitled Your EEO Counselors identifies the agency's EEO Counselors and informs employees that they must contact a counselor within 45 days of the date of the incident of alleged discrimination. The record also contains a signed statement from a former EEO Manager who indicated that this poster was displayed continuously on the EEO Bulletin Board, on the eleventh floor of the Federal Building, from 1993 until the week of September 21, 1998 (minus one week in 1994 during floor remodeling). 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 of the rights and obligations under Title VII will be imputed to a complainant where the agency has fulfilled its statutory duty of conspicuously posting EEO posters informing employees of their rights. See Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996) (citing Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)). 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 the complainant of his or her rights. In addition, the Commission has found that constructive knowledge will not be imputed to a complainant without specific evidence that the posters contained notice of the time limitation for contacting an EEO Counselor. Piccone, EEOC Request No. 05950678 (citing Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993)). In the present case, we find that the agency has shown that it conspicuously posted EEO posters informing employees of their rights. The agency produced a copy of the EEO poster on display at complainant's work facility, which identifies the EEO Counselors and informs employees that they must contact a counselor within 45 days of the date of the incident of alleged discrimination. In addition, the agency produced a signed statement from a former EEO Manager who indicated that this poster was displayed continuously on the EEO Bulletin Board, on the eleventh floor of the Federal Building, from 1993 until the week of September 21, 1998 (minus one week in 1994 during floor remodeling). We note that on appeal, complainant does not claim that she never saw the EEO poster. Instead, complainant states that she may or may not have noticed the poster and in any case she never paid any particular attention to the posting, but relied on a June 28, 1994 memorandum advising persons having complaints about sexual harassment [to] contact either management or . . . the EEO Program Manager. The record reveals that complainant's initial contact with the EEO Office occurred on January 29, 1998. Upon review of the record, we find that complainant had constructive knowledge of the time limit for contacting an EEO Counselor. Furthermore, we find that the June 28, 1994 memorandum from the Dallas District Director to all Dallas District employees properly advised employees that sexual harassment would not be tolerated and that if any one had any questions concerning this policy, or if any one felt victimized by sexual harassment, then that person should notify management or contact the EEO Program Manager. The June 28, 1994 memorandum also provided a toll free number to ensure prompt action on complaints of sexual harassment. There is no indication that complainant was misled by the memorandum or that she attempted to commence the EEO process by contacting management. Since none of the incidents identified by complainant were raised with an EEO Counselor within the applicable forty-five (45) day limitation period, we find her complaint should be dismissed for untimely EEO Counselor contact. 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 3, 2001 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Piccone v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996)", "Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)", "Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,...	[ -0.06257350742816925, 0.038968272507190704, -0.057618118822574615, 0.03348962217569351, 0.004843949805945158, 0.0816265195608139, 0.025547249242663383, -0.009720453061163425, -0.00969313271343708, 0.058050572872161865, 0.04636278748512268, 0.008544603362679482, 0.018709026277065277, 0.0285...
17	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2022002697.pdf	2022002697.pdf	PDF	application/pdf	18,935	Logan G.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.	April 18, 2022	Appeal Number: 2022002697 Background: At the time of even ts giving rise to this complaint, Complainant worked as the Equal Employment Opportunity (EEO) Compliance and Complaints Manage r, GS -0260-12, at the Agency’s Southeast Regional EEO Office in Atlanta, Georgia. He was directly supervised by the Southeast Reg ion EEO Manager. See Report of Investigation (ROI) at 97. Prior to becoming the Compliance and Complaints Manager in January 2017, Complainant worked as a GS -11, EEO Specialist at the same office. ROI at 58 and 96. He obtained the EEO Specialist position as part of a 2013 EEO settlement agreement with management officials at the Biscayne National Park (BISC), where he had previously worked. Id. The terms of the settlement agreement, in relevant part, included the following provision: Complainant acknowledges and understands that in the absence of prior written supervisory approval, he is barred from providing either informal or formal EEO counseling or advice to any agency employee s duty stationed in South Florida, specifically , employees assigned to Biscayne National Park , Everglades National Park, Dry Tortugas National Park, and Big Cypress National Preserve. See ROI at 58 According to the Agency, between 2016 to 2018, Complainant provided EEO advice to five employees stationed at t he BISC . ROI at 133 -41. After becoming aware of Complainant’s actions, two BISC Division Chiefs contacted the BISC Superintendent to voice concern that Complainant’s involvement in EEO matters at the BISC posed a conflict of interest and created ethical issues. Id. Though the BISC Superintendent and the Chief of Administration (Chief) raised these concerns with the EEO Manager in January 2018, the EEO Manager informed them that Complainant’s duties were administrative in nature and did not require him to directly interact with complainants and /or responsible management officials. Id. at 108 and 111. In February 2018, the Agency’s Office of Inspector General (OIG) received an anonymous complaint, accusing Complainant of violating the 2013 settlement agreem ent. OIG subsequently forwarded the matter to the EEO Manager for investigation. ROI at 252. The following month, the Chief called the EEO M anager on March 15, 2018, and left a voicemail complaining about Complainant’s involvement in another BISC employee’ s EEO complaint. Id. at 7. Though the internal investigation revealed that Complainant did in fact provide EEO counseling to employees in South Florida, the EEO Manager concluded that Complainant had not violated the terms of the settlement agreement becau se “he only provided counseling by means of answering questions to those that he was not associated with in a professional or personal sense.” Id. at 252. On June 26, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated ag ainst him on the bases of national origin (Cuba) and in reprisal for prior protected EEO activity under Title VII when on March 15, 2018, management falsely accused him of giving advice to employees at BISC regarding their EEO complaints, thereby damaging his reputation and violating the terms of his EEO settlement agreement signed in August 2013. During the EEO investigation, Complainant accused the BISC Superintendent of harboring animus towards Hispanic people . He recalled that when the BISC Superintendent first arrived, she referred to the park visitors , most who were Hispanic, as “these people” and commented that they did not take the environment seriously. Complainant further recalled that the BISC Superintendent referred to him as “you people” on one occasion. He emphasized that the BISC Superintendent was fully aware of his Hispanic background because in 2017, he specifically informed her of his national origin during a telephone call. As for his claim of repris al, Complainant accused both the BISC Superintendent and the Chief of tarnishing his reputation in order to retaliate against him for his prior protected EEO activity and to avoid having to pay his salary. He denied giving advice to employees at the BISC and emphasized that his role as a non -attorney EEO professional was merely to explain the EEO process to employees. ROI at 98 -102. The EEO Manager confirmed that as EEO professionals , they do not give “advice” and merely provide employees with information “regarding relevant laws and guidelines governing EEO complaints and allow [them] to make their own decisions regarding whether or not they want to file.” She recalled that regional management responded to complaints about Complainant by creating a firewal l between Complainant and the parks “so that they could address both the park’s concerns and shield Complainant from further accusations.” However, park management filed an OIG complaint against Complainant. While the EEO Manager was unsure as to whether the OIG complaint was filed in reprisal for Complainant’s prior EEO activity, she conceded that it did seem to her that “park management based their allegations against Complainant on an agreement that settled past claims by Complainant.” ROI at 221- 23. The BISC Superintendent, however, categorically denied the allegations of discrimination and emphasized that she had never met Complainant. The Chief also denied discriminating against Complainant and asserted that he was unaware of Complainant’s national or igin. The Chief emphasized that his communications with Complainant were limited to “personnel- related questions and information to/from park employees and the EEO Office.” ROI at 8 -11. 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. Following discovery, the assigned AJ is sued an order directing the parties to submit their respective motions for a decision without a hearing no later than April 30, 2020. Neither party submitted their respective motions at the conclusion of the briefing period. Citing illness, the Agency representative filed a motion on January 21, 2022, seeking leave to file a motion for a decision without a hearing. The Agency representative also simultaneously filed a motion for a decision without a hearing, urging the AJ to rule in its favor, as the undis puted record showed that “the complained of actions, even when taken in the aggregate, do not rise to the level of severity or pervasiveness required to support Complainant’s claims.” Furthermore, the Agency representative argued that management had legitimate, nondiscriminatory reasons for taking the alleged actions and emphasized that even if the BISC Superintendent had made the alleged comments about Hispanics, these comments in no way support the conclusion that the reason for contacting the EEO Manager was based on Complainant’s national origin. In response, Complainant initially argued that the Agency’s motion was untimely filed and asserted that the Agency’s failure to follow the rules unfairly prejudiced him. He expressed concerns regarding discover y and noted that he had to file requests under the Freedom of Information Act (FOIA) because the Agency failed to provide him all of the emails that had been sent by the BISC Superintendent and the Chief. He also argued that a hearing was needed so that he could call witnesses to prove that he was simply doing his job. As for the merits of his case, Complainant denied giving advice to complainants and reiterated that as an EEO professional, he never gave advice to anyone. He alleged that the BISC Superintendent and the Chief, in falsely accusing him of giving advice, unfairly tarnished his reputation because they disliked Hispanic people and wanted to avoid paying his salary. Over Complainant ’s objections, the AJ assigned to the case granted the Agency’s January 21, 2022, motion for a decision without a hearing and issued a decision without a hearing on February 18, 2022. In granting the Agency’s motion, the AJ acknowledged that the Agency failed to timely file its motion ; however, the AJ ultimately decided to excuse the delay because Complainant failed to establish prejudice . The AJ found that Complainant could not prevail on the merits of his complaint because the record show ed that when they reported Complainant’s conduct to the EEO Manager ; the OIG, the BISC Superintendent , and the Chief reasonably believed that Complainant was violating the terms of the 2013 settlement agreement. Furthermore, the AJ found that even if the Chi ef had referred to Hispanics as “these people,” the record failed to persuasively link the comment to the employment actions at bar. When the Agency failed to issue a final order within forty (40) days of receipt of the AJ’s Legal Analysis: The Commission ’s regulations allow an AJ to grant 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 part y. 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 legal and factual	Logan G.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2022002697 Hearing No. 510-2019-00224X Agency No. DOI- NPS-18-0466 DECISION On April 18, 2022, 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 April 13, 2022, final order 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. For the following reasons, we AFFIRM the Agency’s final action . BACKGROUND At the time of even ts giving rise to this complaint, Complainant worked as the Equal Employment Opportunity (EEO) Compliance and Complaints Manage r, GS -0260-12, at the Agency’s Southeast Regional EEO Office in Atlanta, Georgia. He was directly supervised by the Southeast Reg ion EEO Manager. See Report of Investigation (ROI) at 97. Prior to becoming the Compliance and Complaints Manager in January 2017, Complainant worked as a GS -11, EEO Specialist at the same office. ROI at 58 and 96. He obtained the EEO Specialist position as part of a 2013 EEO settlement agreement with management officials at the Biscayne National Park (BISC), where he had previously worked. Id. The terms of the settlement agreement, in relevant part, included the following provision: Complainant acknowledges and understands that in the absence of prior written supervisory approval, he is barred from providing either informal or formal EEO counseling or advice to any agency employee s duty stationed in South Florida, specifically , employees assigned to Biscayne National Park , Everglades National Park, Dry Tortugas National Park, and Big Cypress National Preserve. See ROI at 58 According to the Agency, between 2016 to 2018, Complainant provided EEO advice to five employees stationed at t he BISC . ROI at 133 -41. After becoming aware of Complainant’s actions, two BISC Division Chiefs contacted the BISC Superintendent to voice concern that Complainant’s involvement in EEO matters at the BISC posed a conflict of interest and created ethical issues. Id. Though the BISC Superintendent and the Chief of Administration (Chief) raised these concerns with the EEO Manager in January 2018, the EEO Manager informed them that Complainant’s duties were administrative in nature and did not require him to directly interact with complainants and /or responsible management officials. Id. at 108 and 111. In February 2018, the Agency’s Office of Inspector General (OIG) received an anonymous complaint, accusing Complainant of violating the 2013 settlement agreem ent. OIG subsequently forwarded the matter to the EEO Manager for investigation. ROI at 252. The following month, the Chief called the EEO M anager on March 15, 2018, and left a voicemail complaining about Complainant’s involvement in another BISC employee’ s EEO complaint. Id. at 7. Though the internal investigation revealed that Complainant did in fact provide EEO counseling to employees in South Florida, the EEO Manager concluded that Complainant had not violated the terms of the settlement agreement becau se “he only provided counseling by means of answering questions to those that he was not associated with in a professional or personal sense.” Id. at 252. On June 26, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated ag ainst him on the bases of national origin (Cuba) and in reprisal for prior protected EEO activity under Title VII when on March 15, 2018, management falsely accused him of giving advice to employees at BISC regarding their EEO complaints, thereby damaging his reputation and violating the terms of his EEO settlement agreement signed in August 2013. During the EEO investigation, Complainant accused the BISC Superintendent of harboring animus towards Hispanic people . He recalled that when the BISC Superintendent first arrived, she referred to the park visitors , most who were Hispanic, as “these people” and commented that they did not take the environment seriously. Complainant further recalled that the BISC Superintendent referred to him as “you people” on one occasion. He emphasized that the BISC Superintendent was fully aware of his Hispanic background because in 2017, he specifically informed her of his national origin during a telephone call. As for his claim of repris al, Complainant accused both the BISC Superintendent and the Chief of tarnishing his reputation in order to retaliate against him for his prior protected EEO activity and to avoid having to pay his salary. He denied giving advice to employees at the BISC and emphasized that his role as a non -attorney EEO professional was merely to explain the EEO process to employees. ROI at 98 -102. The EEO Manager confirmed that as EEO professionals , they do not give “advice” and merely provide employees with information “regarding relevant laws and guidelines governing EEO complaints and allow [them] to make their own decisions regarding whether or not they want to file.” She recalled that regional management responded to complaints about Complainant by creating a firewal l between Complainant and the parks “so that they could address both the park’s concerns and shield Complainant from further accusations.” However, park management filed an OIG complaint against Complainant. While the EEO Manager was unsure as to whether the OIG complaint was filed in reprisal for Complainant’s prior EEO activity, she conceded that it did seem to her that “park management based their allegations against Complainant on an agreement that settled past claims by Complainant.” ROI at 221- 23. The BISC Superintendent, however, categorically denied the allegations of discrimination and emphasized that she had never met Complainant. The Chief also denied discriminating against Complainant and asserted that he was unaware of Complainant’s national or igin. The Chief emphasized that his communications with Complainant were limited to “personnel- related questions and information to/from park employees and the EEO Office.” ROI at 8 -11. 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. Following discovery, the assigned AJ is sued an order directing the parties to submit their respective motions for a decision without a hearing no later than April 30, 2020. Neither party submitted their respective motions at the conclusion of the briefing period. Citing illness, the Agency representative filed a motion on January 21, 2022, seeking leave to file a motion for a decision without a hearing. The Agency representative also simultaneously filed a motion for a decision without a hearing, urging the AJ to rule in its favor, as the undis puted record showed that “the complained of actions, even when taken in the aggregate, do not rise to the level of severity or pervasiveness required to support Complainant’s claims.” Furthermore, the Agency representative argued that management had legitimate, nondiscriminatory reasons for taking the alleged actions and emphasized that even if the BISC Superintendent had made the alleged comments about Hispanics, these comments in no way support the conclusion that the reason for contacting the EEO Manager was based on Complainant’s national origin. In response, Complainant initially argued that the Agency’s motion was untimely filed and asserted that the Agency’s failure to follow the rules unfairly prejudiced him. He expressed concerns regarding discover y and noted that he had to file requests under the Freedom of Information Act (FOIA) because the Agency failed to provide him all of the emails that had been sent by the BISC Superintendent and the Chief. He also argued that a hearing was needed so that he could call witnesses to prove that he was simply doing his job. As for the merits of his case, Complainant denied giving advice to complainants and reiterated that as an EEO professional, he never gave advice to anyone. He alleged that the BISC Superintendent and the Chief, in falsely accusing him of giving advice, unfairly tarnished his reputation because they disliked Hispanic people and wanted to avoid paying his salary. Over Complainant ’s objections, the AJ assigned to the case granted the Agency’s January 21, 2022, motion for a decision without a hearing and issued a decision without a hearing on February 18, 2022. In granting the Agency’s motion, the AJ acknowledged that the Agency failed to timely file its motion ; however, the AJ ultimately decided to excuse the delay because Complainant failed to establish prejudice . The AJ found that Complainant could not prevail on the merits of his complaint because the record show ed that when they reported Complainant’s conduct to the EEO Manager ; the OIG, the BISC Superintendent , and the Chief reasonably believed that Complainant was violating the terms of the 2013 settlement agreement. Furthermore, the AJ found that even if the Chi ef had referred to Hispanics as “these people,” the record failed to persuasively link the comment to the employment actions at bar. When the Agency failed to issue a final order within forty (40) days of receipt of the AJ’s decision, the AJ’s decision fi nding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. On appeal, Complainant again expresses bewilderment that the AJ a ccepted the Agency’s motion for a decision without a hearing for consideration despite the two- year delay. Complainant also requests that we consider the new evidence that he received in response to his FOIA requests. The Agency , however, opposes the app eal. In its opposition, the Agency initially urges us to disregard the evidence that Complainant submitted for the first time on appeal, as he failed to show that the documents that he obtained through the FOIA process were unavailable to him prior to his appeal. As for the merits of the appeal, the Agency largely reiterates its prior argument that Complainant failed to persuasively show that the underlying actions were based on his protected bases. ANALYSIS AND FINDINGS The Commission ’s regulations allow an AJ to grant 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 part y. 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 legal and factual conclusions, and the 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. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision 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 f acts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dis pute. Even construing any inferences raised by the undisputed facts in favor of Complainant, and the new evidence that Complainant submitted for the first time on appeal, a reasonable factfinder could not find in Complainant’s favor. Upon review of the A J’s decision and the evidence of record, as well as the parties’ arguments on appeal, we find that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In reaching this conclusion, we are mindful that the Agency submitted its motion for a decision without a hearing approximately two years late ; however, we note that the AJ carefully considered Complainant’s arguments regarding the timeliness of the Agency’s motion and concluded that Complainant was not unduly prejudiced by the delay. As we find that the AJ’s ruling was well within the AJ’s discretion, we find no basis to reverse the AJ’s decision to consider the Agency’s motion. See Trina C. v. U.S. Postal Se rv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’ t of Justice , EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (finding that 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before the EEOC). Ultimately, we agree with the AJ that the probative record fails to persuasive show that the BISC Superintendent and the Chief acted with discriminatory animus in reporting Complainant’s conduct to the EEO Manager and the OIG. 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 final action. 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 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 postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO r eceives 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 toge ther 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 o fficial 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 of fice, 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 acti on, 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 15, 2023 Date	[ "Trina C. v. U.S. Postal Se rv., EEOC Appeal No. 0120142617 (Sept. 13, 2016)", "477 U.S. 317", "846 F.2d 103", "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.109(i)", "29 C.F.R. § 1614.109(g)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.109(e)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.604", "2...	[ -0.10644057393074036, 0.06346295028924942, 0.02533409558236599, 0.0473722368478775, -0.0002115946263074875, 0.03685743361711502, 0.04779708385467529, -0.038408517837524414, -0.012859619222581387, 0.06718447804450989, 0.020187413319945335, -0.010280250571668148, -0.027702102437615395, -0.00...
18	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53024.txt	01a53024.txt	TXT	text/plain	20,759	2005 . Robert D. Oest, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Bureau of Prisons), Agency.	March 11, 2005	Appeal Number: 01A53024 Case Facts: Complainant filed a timely appeal with this Commission from the agency's final order dated March 11, 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. The record reflects that in June 1998, complainant requested twelve weeks of unpaid leave for the birth of his son, pursuant to the Family and Medical Leave Act (FMLA) and that his request was denied. Complainant's second request for twelve weeks of unpaid leave was approved effective May 15, 2000. However, complainant claimed that on June 18, 2000, while complainant was on FMLA leave, he was demoted from the position of Materials Handler Supervisor, WS-6907-03, to Correctional Officer, GS-0007-07 in the Correctional Services Department. Following notification of the demotion, complainant sent letters to the Office of Special Counsel (OSC) on June 22, and 28, 2000, regarding the above referenced events. Finally, on August 4, 2000, complainant resigned from his position with the agency. On February 16, 2001, complainant initiated contact with an agency EEO Counselor regarding the denial of leave, demotion, and resignation.<1> On April 23, 2001, complainant filed the instant formal complaint alleging that he was subjected to discrimination on the bases of sex (male) and in reprisal for whistleblowing. The record indicates that the agency did not complete its investigation of the complaint at the end of the 180-day period pursuant to 29 C.F.R. § 1614.108(e). Thereafter, complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 21, 2002, the AJ issued an Order, wherein the AJ determined that because complainant alleged constructive discharge, his complaint was a mixed case complaint, and that the Commission had no authority to conduct a hearing on mixed case matters. The AJ, however, did not remand the complaint to the agency for processing as a mixed case complaint. Instead, the AJ cited 29 C.F.R. § 1614.107(a)(4), and 29 C.F.R. § 1614.109, and dismissed the instant complaint. In its April 15, 2002 final order the agency adopted the AJ's order dismissing the captioned complaint, and provided complainant with appeal rights to the Commission. The agency indicated that if complainant agreed with the AJ's decision, the agency would issue a decision on [complainant's] case. On May 6, 2002, complainant filed an appeal with the Commission from the agency's dismissal and filed an appeal on the merits of his case with the Merit Systems Protection Board (MSPB). Complainant did not notify the Commission of his MSPB appeal at the time he filed an appeal with the Commission. On appeal, the Commission determined that the instant complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4), because there was no evidence to reflect that complainant filed an appeal with the MSPB regarding his constructive discharge claim. The Commission determined that rather than dismiss the complaint, the hearing should have been cancelled, and the case remanded to the agency for processing as a mixed case complaint, with explicit instructions to issue a decision on the merits of the complaint, with appeals rights to the MSPB, and not the Commission, as set forth in 29 C.F.R. § 1614.302(d)(3). Thereafter, the Commission vacated the agency's final action and remanded the case to the agency for further processing. Oest v. Department of Justice, EEOC Appeal No. 01A22978 (May 22, 2003) Following the Commission's decision in EEOC Appeal No. 01A22978, complainant filed a request for reconsideration. The Commission granted complainant's request. The Commission found that the MSPB issued a decision, dismissing complainant's appeal on the grounds that it lacked jurisdiction. Based on these circumstances, the Commission determined that complainant's complaint should be viewed and processed as a non-mixed case. Moreover, the Commission reversed its prior decision and remanded complainant's complaint to the agency and ordered it to request a hearing with the appropriate EEOC district office. Oest v. Department of Justice, EEOC Request No. 05A30914 (March 1, 2004) The record contains a document entitled Agency's Motion to Dismiss dated October 12, 2004. Therein, the agency stated that complainant contacted an EEO Counselor outside the applicable time period. The agency further asserted that complainant's contact with OSC does not toll the time limits for complainant to contact an EEO Counselor. In addition, the agency asserted that complainant had constructive knowledge of the time limits because the time limits were posted at the agency facility during complainant's employment. Further, the agency stated that complainant claims reprisal for invoking whistleblower protection which is not within the purview of the EEO process; therefore, the basis of reprisal should be dismissed for failure to state a claim. Complainant, through his attorney, responded to the Agency's Motion to Dismiss on October 20, 2004. Therein, complainant's attorney asserted that the AJ should deny the agency's motion to dismiss. Specifically, complainant's attorney states that, pursuant to 5 U.S.C. § 7702, employees should not suffer for filing their cases in the wrong place. Furthermore, complainant's attorney states that complainant's EEO complaint is not untimely, because it was timely at the MSPB. On January 28, 2005, the AJ issued an Order dismissing complainant's EEO complaint on the grounds of untimely EEO Counselor contact. In its final order, dated March 11, 2005, which is the subject of the instant appeal, the agency implemented the AJ's Order dismissing complainant's complaint. In its final order, the agency stated that complainant contacted OSC twice by letter, asserting that he was being retaliated against for his whistleblower activity. The agency further stated that this was not an EEO claim. In addition, the agency stated that an agency does not waive timeliness by investigating a claim. Furthermore, the agency states that while complainant claimed that he was unaware of the applicable time limit for initiating contact with an EEO Counselor, complainant had constructive knowledge of the applicable time limits based on information posted at the agency and training complainant received informing him of his EEO rights. In a document entitled Complainant's Supplemental Submission on Motion to Dismiss dated March 14, 2005, subsequent to the AJ's dismissal, complainant's attorney asserts that it is too late for the agency to dismiss the EEO complaint because the agency has already accepted complainant's complaint and has conducted an investigation. Complainant's attorney also states that complainant thought OSC would be investigating his discrimination claims; however, he received a letter from OSC on January 24, 2001, stating that it would be investigating complainant's claims related to reprisal for his whistleblower activities, but that OSC did not mention his discrimination claims. Complainant's attorney further states that on February 16, 2001, complainant contacted an EEO Counselor to find out where he needed to file his claims of discrimination. EEO Counselor Contact Legal Analysis: the Commission had no authority to conduct a hearing on mixed case matters. The AJ, however, did not remand the complaint to the agency for processing as a mixed case complaint. Instead, the AJ cited 29 C.F.R. § 1614.107(a)(4), and 29 C.F.R. § 1614.109, and dismissed the instant complaint. In its April 15, 2002 final order the agency adopted the AJ's order dismissing the captioned complaint, and provided complainant with appeal rights to the Commission. The agency indicated that if complainant agreed with the AJ's decision, the agency would issue a decision on [complainant's] case. On May 6, 2002, complainant filed an appeal with the Commission from the agency's dismissal and filed an appeal on the merits of his case with the Merit Systems Protection Board (MSPB). Complainant did not notify the Commission of his MSPB appeal at the time he filed an appeal with the Commission. On appeal, the Commission determined that the instant complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4), because there was no evidence to reflect that complainant filed an appeal with the MSPB regarding his constructive discharge claim. The Commission determined that rather than dismiss the complaint, the hearing should have been cancelled, and the case remanded to the agency for processing as a mixed case complaint, with explicit instructions to issue a decision on the merits of the complaint, with appeals rights to the MSPB, and not the Commission, as set forth in 29 C.F.R. § 1614.302(d)(3). Thereafter, the Commission vacated the agency's final action and remanded the case to the agency for further processing. Oest v. Department of Justice, EEOC Appeal No. 01A22978 (May 22, 2003) Following the Commission's decision in EEOC Appeal No. 01A22978, complainant filed a request for reconsideration. The Commission granted complainant's request. The Commission found that the MSPB issued a decision, dismissing complainant's appeal on the grounds that it lacked jurisdiction. Based on these circumstances, the Commission determined that complainant's complaint should be viewed and processed as a non-mixed case. Moreover, the Commission reversed its prior decision and remanded complainant's complaint to the agency and ordered it to request a hearing with the appropriate EEOC district office. Oest v. Department of Justice, EEOC Request No. 05A30914 (March 1, 2004) The record contains a document entitled Agency's Motion to Dismiss dated October 12, 2004. Therein, the agency stated that complainant contacted an EEO Counselor outside the applicable time period. The agency further asserted that complainant's contact with OSC does not toll the time limits for complainant to contact an EEO Counselor. In addition, the agency asserted that complainant had constructive knowledge of the time limits because the time limits were posted at the agency facility during complainant's employment. Further, the agency stated that complainant claims reprisal for invoking whistleblower protection which is not within the purview of the EEO process; therefore, the basis of reprisal should be dismissed for failure to state a claim. Complainant, through his attorney, responded to the Agency's Motion to Dismiss on October 20, 2004. Therein, complainant's attorney asserted that the AJ should deny the agency's motion to dismiss. Specifically, complainant's attorney states that, pursuant to 5 U.S.C. § 7702, employees should not suffer for filing their cases in the wrong place. Furthermore, complainant's attorney states that complainant's EEO complaint is not untimely, because it was timely at the MSPB. On January 28, 2005, the AJ issued an Order dismissing complainant's EEO complaint on the grounds of untimely EEO Counselor contact. In its final order, dated March 11, 2005, which is the subject of the instant appeal, the agency implemented the AJ's Order dismissing complainant's complaint. In its final order, the agency stated that complainant contacted OSC twice by letter, asserting that he was being retaliated against for his whistleblower activity. The agency further stated that this was not an EEO claim. In addition, the agency stated that an agency does not waive timeliness by investigating a claim. Furthermore, the agency states that while complainant claimed that he was unaware of the applicable time limit for initiating contact with an EEO Counselor, complainant had constructive knowledge of the applicable time limits based on information posted at the agency and training complainant received informing him of his EEO rights. In a document entitled Complainant's Supplemental Submission on Motion to Dismiss dated March 14, 2005, subsequent to the AJ's dismissal, complainant's attorney asserts that it is too late for the agency to dismiss the EEO complaint because the agency has already accepted complainant's complaint and has conducted an investigation. Complainant's attorney also states that complainant thought OSC would be investigating his discrimination claims; however, he received a letter from OSC on January 24, 2001, stating that it would be investigating complainant's claims related to reprisal for his whistleblower activities, but that OSC did not mention his discrimination claims. Complainant's attorney further states that on February 16, 2001, complainant contacted an EEO Counselor to find out where he needed to file his claims of discrimination. 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 her 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, complainant presents various arguments regarding why his initial EEO Counselor contact on February 16, 2001, is timely. The Commission agrees with the agency's assertion that filing a complaint with OSC does not toll the time limit for initiating EEO Counselor contact; however, the Commission notes that complainant claims that he was unaware of the applicable time limits for contacting an EEO Counselor. In an attachment to his formal EEO complaint, complainant stated that I believed that OSC would also look into the discrimination. On January 24, 2001, I received a letter from OSC stating that they would be investigating certain issues with respect to reprisal for whistleblowing; however, they did not specifically state that they would be investigating the discrimination. I was unaware at this time that OSC did not investigate complaints of discrimination as part of whistleblowing reprisal. I contacted a [named EEO Counselor] on February 16, 2001, to see where I needed to file my complaint. I then spoke with [a named attorney at OSC] on February 23, 2001, and she confirmed that I would need to file a separate complaint with the EEO allegations of discrimination. In response, the agency stated that complainant never informed OSC that he thought that he was being discriminated against on the basis of his sex. It does not appear that complainant expressly raised sex discrimination in his June 22 and June 28, 2000 letters to OSC; however, the record reflects that some of complainant's communications with OSC were verbal. Specifically, as set forth above, complainant in his formal complaint stated that he spoke with an OSC attorney on February 23, 2001, and was informed that he would need to file a separate complaint for his EEO claims. Thus, we find that complainant may have raised his claims of sex discrimination with OSC through verbal communications. Based on the foregoing, we find that complainant is alleging that he was unaware of the applicable time limits for contacting an EEO Counselor. The agency in its Motion to Dismiss and it final order asserted that complainant had constructive knowledge of the applicable time limit. Specifically, the agency asserted that there were posters at complainant's facility detailing the applicable time limits. In addition, the agency asserted that complainant received training regarding the EEO process. The record contains a declaration under penalty of perjury dated January 3, 2002, from the agency's Human Resource Manager (HRM). Therein, HRM stated that during complainant's tenure with the agency notices about the EEO complaint process were located on the EEO bulletin boards. In addition, HRM stated that [complainant] received training...on EEO procedures when he attended Annual Refresher Training (ART). The ART included topics such as EEO complaint procedures, sexual harassment, diversity management.... The Commission finds that the AJ improperly dismissed complainant's complaint for untimely EEO Counselor contact. HRM asserted that there were posters setting forth the EEO complaint process; however, HRM did not state that the posters contained information regarding the 45-day time limit to contact an EEO Counselor. In addition, the record does not contain a copy of the posters referenced by HRM. Furthermore, while HRM asserts that complainant received training on the EEO complaint process, HRM does not state that such training specifically mentioned the applicable time limit for contacting an EEO Counselor. 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 Commission has 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). In the instant matter, the agency has not met its burden. Reprisal Basis One of the bases complainant raised is reprisal. Specifically, complainant claimed reprisal for engaging in whistle-blowing activities.<2> The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannou v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989) (holding that complainant failed to state a claim regarding claims of retaliation for her whistleblower activity). Consequently, the Commission dismisses the basis of reprisal for engaging in whistleblower activity for failure to state a claim.	Robert D. Oest v. Department of Justice 01A53204 9/13/2005 . Robert D. Oest, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Bureau of Prisons), Agency. Appeal No. 01A53024 Agency No. P-2001-0142 Hearing No. 320-A4-00264X DECISION Complainant filed a timely appeal with this Commission from the agency's final order dated March 11, 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. The record reflects that in June 1998, complainant requested twelve weeks of unpaid leave for the birth of his son, pursuant to the Family and Medical Leave Act (FMLA) and that his request was denied. Complainant's second request for twelve weeks of unpaid leave was approved effective May 15, 2000. However, complainant claimed that on June 18, 2000, while complainant was on FMLA leave, he was demoted from the position of Materials Handler Supervisor, WS-6907-03, to Correctional Officer, GS-0007-07 in the Correctional Services Department. Following notification of the demotion, complainant sent letters to the Office of Special Counsel (OSC) on June 22, and 28, 2000, regarding the above referenced events. Finally, on August 4, 2000, complainant resigned from his position with the agency. On February 16, 2001, complainant initiated contact with an agency EEO Counselor regarding the denial of leave, demotion, and resignation.<1> On April 23, 2001, complainant filed the instant formal complaint alleging that he was subjected to discrimination on the bases of sex (male) and in reprisal for whistleblowing. The record indicates that the agency did not complete its investigation of the complaint at the end of the 180-day period pursuant to 29 C.F.R. § 1614.108(e). Thereafter, complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 21, 2002, the AJ issued an Order, wherein the AJ determined that because complainant alleged constructive discharge, his complaint was a mixed case complaint, and that the Commission had no authority to conduct a hearing on mixed case matters. The AJ, however, did not remand the complaint to the agency for processing as a mixed case complaint. Instead, the AJ cited 29 C.F.R. § 1614.107(a)(4), and 29 C.F.R. § 1614.109, and dismissed the instant complaint. In its April 15, 2002 final order the agency adopted the AJ's order dismissing the captioned complaint, and provided complainant with appeal rights to the Commission. The agency indicated that if complainant agreed with the AJ's decision, the agency would issue a decision on [complainant's] case. On May 6, 2002, complainant filed an appeal with the Commission from the agency's dismissal and filed an appeal on the merits of his case with the Merit Systems Protection Board (MSPB). Complainant did not notify the Commission of his MSPB appeal at the time he filed an appeal with the Commission. On appeal, the Commission determined that the instant complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4), because there was no evidence to reflect that complainant filed an appeal with the MSPB regarding his constructive discharge claim. The Commission determined that rather than dismiss the complaint, the hearing should have been cancelled, and the case remanded to the agency for processing as a mixed case complaint, with explicit instructions to issue a decision on the merits of the complaint, with appeals rights to the MSPB, and not the Commission, as set forth in 29 C.F.R. § 1614.302(d)(3). Thereafter, the Commission vacated the agency's final action and remanded the case to the agency for further processing. Oest v. Department of Justice, EEOC Appeal No. 01A22978 (May 22, 2003) Following the Commission's decision in EEOC Appeal No. 01A22978, complainant filed a request for reconsideration. The Commission granted complainant's request. The Commission found that the MSPB issued a decision, dismissing complainant's appeal on the grounds that it lacked jurisdiction. Based on these circumstances, the Commission determined that complainant's complaint should be viewed and processed as a non-mixed case. Moreover, the Commission reversed its prior decision and remanded complainant's complaint to the agency and ordered it to request a hearing with the appropriate EEOC district office. Oest v. Department of Justice, EEOC Request No. 05A30914 (March 1, 2004) The record contains a document entitled Agency's Motion to Dismiss dated October 12, 2004. Therein, the agency stated that complainant contacted an EEO Counselor outside the applicable time period. The agency further asserted that complainant's contact with OSC does not toll the time limits for complainant to contact an EEO Counselor. In addition, the agency asserted that complainant had constructive knowledge of the time limits because the time limits were posted at the agency facility during complainant's employment. Further, the agency stated that complainant claims reprisal for invoking whistleblower protection which is not within the purview of the EEO process; therefore, the basis of reprisal should be dismissed for failure to state a claim. Complainant, through his attorney, responded to the Agency's Motion to Dismiss on October 20, 2004. Therein, complainant's attorney asserted that the AJ should deny the agency's motion to dismiss. Specifically, complainant's attorney states that, pursuant to 5 U.S.C. § 7702, employees should not suffer for filing their cases in the wrong place. Furthermore, complainant's attorney states that complainant's EEO complaint is not untimely, because it was timely at the MSPB. On January 28, 2005, the AJ issued an Order dismissing complainant's EEO complaint on the grounds of untimely EEO Counselor contact. In its final order, dated March 11, 2005, which is the subject of the instant appeal, the agency implemented the AJ's Order dismissing complainant's complaint. In its final order, the agency stated that complainant contacted OSC twice by letter, asserting that he was being retaliated against for his whistleblower activity. The agency further stated that this was not an EEO claim. In addition, the agency stated that an agency does not waive timeliness by investigating a claim. Furthermore, the agency states that while complainant claimed that he was unaware of the applicable time limit for initiating contact with an EEO Counselor, complainant had constructive knowledge of the applicable time limits based on information posted at the agency and training complainant received informing him of his EEO rights. In a document entitled Complainant's Supplemental Submission on Motion to Dismiss dated March 14, 2005, subsequent to the AJ's dismissal, complainant's attorney asserts that it is too late for the agency to dismiss the EEO complaint because the agency has already accepted complainant's complaint and has conducted an investigation. Complainant's attorney also states that complainant thought OSC would be investigating his discrimination claims; however, he received a letter from OSC on January 24, 2001, stating that it would be investigating complainant's claims related to reprisal for his whistleblower activities, but that OSC did not mention his discrimination claims. Complainant's attorney further states that on February 16, 2001, complainant contacted an EEO Counselor to find out where he needed to file his claims of discrimination. 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 her 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, complainant presents various arguments regarding why his initial EEO Counselor contact on February 16, 2001, is timely. The Commission agrees with the agency's assertion that filing a complaint with OSC does not toll the time limit for initiating EEO Counselor contact; however, the Commission notes that complainant claims that he was unaware of the applicable time limits for contacting an EEO Counselor. In an attachment to his formal EEO complaint, complainant stated that I believed that OSC would also look into the discrimination. On January 24, 2001, I received a letter from OSC stating that they would be investigating certain issues with respect to reprisal for whistleblowing; however, they did not specifically state that they would be investigating the discrimination. I was unaware at this time that OSC did not investigate complaints of discrimination as part of whistleblowing reprisal. I contacted a [named EEO Counselor] on February 16, 2001, to see where I needed to file my complaint. I then spoke with [a named attorney at OSC] on February 23, 2001, and she confirmed that I would need to file a separate complaint with the EEO allegations of discrimination. In response, the agency stated that complainant never informed OSC that he thought that he was being discriminated against on the basis of his sex. It does not appear that complainant expressly raised sex discrimination in his June 22 and June 28, 2000 letters to OSC; however, the record reflects that some of complainant's communications with OSC were verbal. Specifically, as set forth above, complainant in his formal complaint stated that he spoke with an OSC attorney on February 23, 2001, and was informed that he would need to file a separate complaint for his EEO claims. Thus, we find that complainant may have raised his claims of sex discrimination with OSC through verbal communications. Based on the foregoing, we find that complainant is alleging that he was unaware of the applicable time limits for contacting an EEO Counselor. The agency in its Motion to Dismiss and it final order asserted that complainant had constructive knowledge of the applicable time limit. Specifically, the agency asserted that there were posters at complainant's facility detailing the applicable time limits. In addition, the agency asserted that complainant received training regarding the EEO process. The record contains a declaration under penalty of perjury dated January 3, 2002, from the agency's Human Resource Manager (HRM). Therein, HRM stated that during complainant's tenure with the agency notices about the EEO complaint process were located on the EEO bulletin boards. In addition, HRM stated that [complainant] received training...on EEO procedures when he attended Annual Refresher Training (ART). The ART included topics such as EEO complaint procedures, sexual harassment, diversity management.... The Commission finds that the AJ improperly dismissed complainant's complaint for untimely EEO Counselor contact. HRM asserted that there were posters setting forth the EEO complaint process; however, HRM did not state that the posters contained information regarding the 45-day time limit to contact an EEO Counselor. In addition, the record does not contain a copy of the posters referenced by HRM. Furthermore, while HRM asserts that complainant received training on the EEO complaint process, HRM does not state that such training specifically mentioned the applicable time limit for contacting an EEO Counselor. 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 Commission has 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). In the instant matter, the agency has not met its burden. Reprisal Basis One of the bases complainant raised is reprisal. Specifically, complainant claimed reprisal for engaging in whistle-blowing activities.<2> The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannou v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989) (holding that complainant failed to state a claim regarding claims of retaliation for her whistleblower activity). Consequently, the Commission dismisses the basis of reprisal for engaging in whistleblower activity for failure to state a claim. Accordingly, we DISMISS the basis of reprisal for the reasons stated herein. However, we REVERSE the agency's final order dismissing the remainder of complainant's complaint and we REMAND this matter to the agency for further processing in accordance with the ORDER below. ORDER The agency shall request the Hearings Unit of the appropriate EEOC District office to schedule a hearing, within fifteen (15) calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. 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 9/13/2005 Date 1The record contains a copy of the EEO Counselor's Report. Therein, it states that complainant was delayed in contacting an EEO Counselor because [c]omplainant had requested clarification on a personnel action in June 2000 [and the Office of Personnel Management] did not respond until February 7, 2001. 2The record reflects that complainant is alleging that he was retaliated against when he informed agency management that an agency official used excessive force on an inmate.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)", "Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993)", "Giannou v. Department of Housing and Urban Development, EEOC Request No. 05880911 ...	[ -0.07783449441194534, 0.08552911132574081, -0.052605047821998596, 0.052979759871959686, 0.06427514553070068, 0.0037519957404583693, -0.003576383925974369, 0.03446052595973015, 0.013818318955600262, -0.00008279627945739776, 0.045315708965063095, 0.07684647291898727, -0.024265000596642494, -...
19	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981738.txt	01981738.txt	TXT	text/plain	18,303		February 24, 1999	Appeal Number: 01981738 Background: Appellant initiated contact with an EEO Counselor on May 4, 1994. In a formal EEO complaint dated June 15, 1994, appellant alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant alleged that he became aware that he had been discriminated against on March 24, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 4, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Elax J. Lewis v. Department of the Treasury, EEOC Appeal No. 01965676 (July 23, 1997), the Commission vacated the final agency Legal Analysis: the Commission. On appeal, Elax J. Lewis v. Department of the Treasury, EEOC Appeal No. 01965676 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 4, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon the Friday after selections are made. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 4, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, stating that claims test answers were distributed to white employees, it appears that appellant developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 4, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period.	Elax J. Lewis v. Department of the Treasury 01981738 February 24, 1999 Elax J. Lewis, ) Appellant, ) ) v. ) Appeal No. 01981738 ) Agency No. 94-1160R Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) 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's attorney received the final agency decision on December 9, 1997. The appeal was postmarked December 23, 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. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 4, 1994. In a formal EEO complaint dated June 15, 1994, appellant alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant alleged that he became aware that he had been discriminated against on March 24, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 4, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Elax J. Lewis v. Department of the Treasury, EEOC Appeal No. 01965676 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 4, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon the Friday after selections are made. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 4, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, stating that claims test answers were distributed to white employees, it appears that appellant developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 4, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: Feb 24, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations 1EEOC Appeal Nos. 01981734, 01981735, 01981736, and 01981737.	[ "Elax J. Lewis v. Department of the Treasury, EEOC Appeal No. 01965676 (July 23, 1997)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.09734778106212616, 0.10328158736228943, -0.03554827719926834, -0.03184433653950691, 0.07651124149560928, -0.024277430027723312, 0.05084339156746864, 0.047288790345191956, 0.002461566124111414, 0.02962220087647438, 0.04094923287630081, -0.004082494881004095, -0.0009972359985113144, 0.006...
20	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981737.txt	01981737.txt	TXT	text/plain	18,562		February 24, 1999	Appeal Number: 01981737 Background: Appellant initiated contact with an EEO Counselor on May 2, 1994. On June 1, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant alleged that he became aware that he had been discriminated against on March 24, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 2, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Howard L. Franklin v. Department of the Treasury, EEOC Appeal No. 01965675 (July 23, 1997), the Commission vacated the final agency Legal Analysis: the Commission. On appeal, Howard L. Franklin v. Department of the Treasury, EEOC Appeal No. 01965675 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 2, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 24, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 2, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, stating that claims test answers were distributed to white employees, it appears that appellant developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 2, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period.	Howard L. Franklin v. Department of the Treasury 01981737 February 24, 1999 Howard L. Franklin, ) Appellant, ) ) v. ) Appeal No. 01981737 ) Agency No. 94-1140R Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) 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's attorney received the final agency decision on December 8, 1997. The appeal was postmarked December 23, 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. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 2, 1994. On June 1, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant alleged that he became aware that he had been discriminated against on March 24, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 2, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Howard L. Franklin v. Department of the Treasury, EEOC Appeal No. 01965675 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 2, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 24, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 2, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, stating that claims test answers were distributed to white employees, it appears that appellant developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 2, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: Feb 24, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations 1EEOC Appeal Nos. 01981734, 01981735, 01981736, and 01981738.	[ "Howard L. Franklin v. Department of the Treasury, EEOC Appeal No. 01965675 (July 23, 1997)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.07195813953876495, 0.08031486719846725, -0.013243751600384712, -0.045832980424165726, 0.05783560872077942, 0.01629376783967018, 0.06598911434412003, 0.06670308113098145, -0.008158991113305092, 0.059474170207977295, 0.03272494673728943, 0.00854796078056097, -0.023066794499754906, 0.00063...
21	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981736.txt	01981736.txt	TXT	text/plain	18,569		February 24, 1999	Appeal Number: 01981736 Complaint Allegations: In his complaint, appellant alleged that he became aware that he had been discriminated against on March 31, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 30, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 4, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Martin L. Hill v. Department of the Treasury, EEOC Appeal No. 01965674 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 4, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 30, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. Background: Appellant initiated contact with an EEO Counselor on May 4, 1994. On June 18, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. In his complaint, appellant alleged that he became aware that he had been discriminated against on March 31, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 30, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 4, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Martin L. Hill v. Department of the Treasury, EEOC Appeal No. 01965674 (July 23, 1997), the Commission vacated the final agency Legal Analysis: the Commission. On appeal, Martin L. Hill v. Department of the Treasury, EEOC Appeal No. 01965674 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 4, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 30, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 4, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, that claims test answers were distributed to white employees, it appears that appellant had developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 4, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period.	Martin L. Hill v. Department of the Treasury 01981736 February 24, 1999 Martin L. Hill, ) Appellant, ) ) v. ) Appeal No. 01981736 ) Agency No. 94-1159R Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) 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's attorney received the final agency decision on December 9, 1997. The appeal was postmarked December 23, 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. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 4, 1994. On June 18, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. In his complaint, appellant alleged that he became aware that he had been discriminated against on March 31, 1994, when he received feedback on his nonselection. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 30, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 4, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Martin L. Hill v. Department of the Treasury, EEOC Appeal No. 01965674 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 4, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 30, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 4, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. In light of the petition signed by appellant in December 1993, that claims test answers were distributed to white employees, it appears that appellant had developed a reasonable suspicion of discrimination by the time he learned of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 4, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: Feb 24, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations 1EEOC Appeal Nos. 01981734, 01981735, 01981737, and 01981738.	[ "Martin L. Hill v. Department of the Treasury, EEOC Appeal No. 01965674 (July 23, 1997)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.14140084385871887, 0.11226033419370651, -0.015656035393476486, -0.046125177294015884, 0.06279575079679489, -0.003581381170079112, 0.01203219499439001, 0.07816658169031143, 0.02412039041519165, 0.046989183872938156, 0.03637135773897171, -0.036759015172719955, -0.053475577384233475, -0.02...
22	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981735.txt	01981735.txt	TXT	text/plain	17,986		February 24, 1999	Appeal Number: 01981735 Background: Appellant initiated contact with an EEO Counselor on May 6, 1994. On June 17, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant indicated that he became aware of the alleged discrimination on March 24, 1994. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 23, 1994. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 6, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Sam L. Gilbert, Jr. v. Department of the Treasury, EEOC Appeal No. 01965673 (July 23, 1997), the Commission vacated the final agency Legal Analysis: the Commission. On appeal, Sam L. Gilbert, Jr. v. Department of the Treasury, EEOC Appeal No. 01965673 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 6, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 7, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 23, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 6, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. It is unclear whether appellant had a reasonable suspicion of discrimination upon learning of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 6, 1994. Upon review of the entire record, we find that there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period.	Sam L. Gilbert, Jr. v. Department of the Treasury 01981735 February 24, 1999 Sam L. Gilbert, Jr., ) Appellant, ) ) v. ) Appeal No. 01981735 ) Agency No. 94-1158R Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) 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's attorney received the final agency decision on December 8, 1997. The appeal was postmarked December 23, 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. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 6, 1994. On June 17, 1994, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. Appellant indicated that he became aware of the alleged discrimination on March 24, 1994. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 23, 1994. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 6, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Sam L. Gilbert, Jr. v. Department of the Treasury, EEOC Appeal No. 01965673 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 6, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 7, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 23, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 6, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. It is unclear whether appellant had a reasonable suspicion of discrimination upon learning of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 6, 1994. Upon review of the entire record, we find that there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: Feb 24, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations 1EEOC Appeal Nos. 01981734, 01981736, 01981737, and 01981738.	[ "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.14317873120307922, 0.07842949032783508, -0.04754840210080147, -0.029245708137750626, 0.01965152472257614, 0.04833941534161568, 0.07338886708021164, 0.04784320667386055, -0.00028277799719944596, 0.07159968465566635, 0.04723433405160904, 0.011887889355421066, -0.03692782670259476, 0.01840...
23	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981734.txt	01981734.txt	TXT	text/plain	18,338		February 24, 1999	Appeal Number: 01981734 Complaint Allegations: In his complaint, appellant alleged that the discrimination occurred on March 24, 1994. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 3, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Willie L. Webb v. Department of the Treasury, EEOC Appeal No. 01965672 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 3, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 24, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. Background: Appellant initiated contact with an EEO Counselor on May 3, 1994. In a formal EEO complaint dated May 31, 1994, appellant alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. In his complaint, appellant alleged that the discrimination occurred on March 24, 1994. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 3, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Willie L. Webb v. Department of the Treasury, EEOC Appeal No. 01965672 (July 23, 1997), the Commission vacated the final agency Legal Analysis: the Commission. On appeal, Willie L. Webb v. Department of the Treasury, EEOC Appeal No. 01965672 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 3, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 24, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 3, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. It appears that appellant had a reasonable suspicion of discrimination upon learning of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 3, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period.	Willie L. Webb v. Department of the Treasury 01981734 February 24, 1999 Willie L. Webb, ) Appellant, ) ) v. ) Appeal No. 01981734 ) Agency No. 94-1143R Robert E. Rubin, ) Secretary, ) Department of the Treasury, ) 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's attorney received the final agency decision on December 9, 1997. The appeal was postmarked December 23, 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. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds of failure to contact an EEO Counselor in a timely manner. BACKGROUND Appellant initiated contact with an EEO Counselor on May 3, 1994. In a formal EEO complaint dated May 31, 1994, appellant alleged that he had been discriminated against on the bases of his sex (male) and race (black) when he was not selected for a GS-334-5/7/9 Computer Systems Analyst position pursuant to Vacancy Announcement No. 93-100. The record reveals that appellant was not among the selectees for ten or more Computer Systems Analyst positions. The selectees were notified that they had been selected on January 31, 1994. The agency posted the selections for the positions on the official bulletin boards on March 4, 1994. In his complaint, appellant alleged that the discrimination occurred on March 24, 1994. In a letter dated June 24, 1996, appellant's attorney stated that agency management was responsible for the delay in the EEO contact. According to the letter, appellant contacted EEO Counselors on several occasions to file a complaint, but was told that he had to wait for feedback from the test scores, testing procedures and members on the ranking panel. Appellant had a feedback interview on March 24, 1994. In December 1993, appellant signed a petition which claimed that there were unethical practices by management regarding the written test for the Computer Systems Analyst positions, and that test answers were distributed to white employees. In its previous final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency stated in its final decision that although appellant alleged that he contacted an EEO Counselor on several occasions prior to May 3, 1994, and was informed that he could not file a complaint until after talking to the Director and/or the Division Chief, appellant failed to identify the names of the EEO Counselors with whom he had allegedly spoken or to provide the date of prior alleged contact. The agency acknowledged that appellant contacted an EEO Counselor in March 1994, but stated that he did not express an intent to pursue the EEO process at that time. Thereafter, appellant filed an appeal with the Commission. On appeal, Willie L. Webb v. Department of the Treasury, EEOC Appeal No. 01965672 (July 23, 1997), the Commission vacated the final agency decision and remanded the complaint for a supplemental investigation. The Commission ordered the agency to supplement the record with evidence addressing whether appellant contacted the EEO Office prior to May 3, 1994, and the nature of those contacts. The agency was also instructed to conduct a supplemental investigation to determine when appellant learned of his nonselection. In its subsequent final decision, the agency again dismissed appellant's complaint on the grounds that he failed to contact an EEO Counselor in a timely manner. The agency determined that selections for the Computer Systems Analyst positions were made in January 1994, and that it is standard operating procedure for the names of selectees to be posted on bulletin boards by noon of the Friday after selections are made. According to the agency, appellant's name was submitted to the Personnel Office on March 8, 1994, as an individual who was not selected and desired feedback. The agency stated that appellant received feedback on March 24, 1994. The agency noted that although appellant made vague and general claims that he contacted an EEO Counselor on several occasions and was told that he could not file a complaint until after talking to the Director and/or Division Chief, appellant did not provide the dates of the alleged contacts nor the names of the EEO Counselors. According to the agency, the EEO Specialist was unaware of any EEO Counselor who advised appellant in that manner. The agency determined that appellant had a reasonable suspicion that the selections were made near the end of January 1994. The agency further determined that when the EEO Specialist inquired of the test scores in March 1994, appellant did not indicate his intention to pursue the EEO counseling process. On appeal, appellant maintains that he sought to file an EEO complaint many times prior to the recorded EEO contact date. Appellant argues that two EEO Counselors informed him that prior to filing an EEO complaint, he had to wait for feedback from the Personnel Office with regard to his nonselection, and he had to have a meeting with the Information Systems Division Chief or the Service Center Director. Further, appellant contends that the agency improperly conducted its supplemental investigation. According to appellant, the investigator contacted only management officials. In support, appellant submits an affidavit from an agency employee who states that he has witnessed improper EEO counseling as a complainant and as an employee representative. According to this employee, the EEO Counselors have deliberately delayed the processing of complaints by requiring complainants to take preliminary steps before allowing them to proceed. The employee states that among the improper tactics used by some EEO Counselors are a failure to record the initial date that complainants contact the EEO Office; they inform complainants that they do not have a case or that they can not file an EEO complaint; they require complainants to meet informally with managerial officials before allowing them to proceed; and after the informal meetings are concluded, they will schedule meetings with the complainants and use the current date as the initial contact date. 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the limitation period was triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation period was not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent. The record reveals that the selections for the Computer Systems Analyst positions were not posted on the agency bulletin board until March 4, 1994. According to the agency, appellant did not initiate contact with an EEO Counselor for the purpose of utilizing the EEO process until May 3, 1994. Such contact is after the expiration of the 45-day limitation period. Appellant sought feedback about his nonselection after he was notified that he had not been chosen. It appears that appellant had a reasonable suspicion of discrimination upon learning of his nonselection. However, the record suggests that the EEO Office may have taken actions either deliberately or inadvertently that caused appellant to delay pursuing the EEO process. According to appellant, the EEO Office instructed him that before he could file a complaint, he had to wait for feedback from the Personnel Office about his nonselection, and he had to have a meeting with either the Information Systems Division Chief or the Service Center Director. This argument is more credible given that the same argument is also presented by four other individuals in appellant's office. These individuals currently have appeals pending decision before the Commission with regard to nonselections under the same vacancy announcement.<1> We find further support for this position in the affidavit submitted by an agency employee who states that he has been a complainant and an employee representative. This individual described tactics engaged in by some EEO Counselors that coincide with those referenced by appellant. Such actions include requiring complainants to meet with managerial officials before allowing them to proceed with the EEO process, and after these meetings are concluded, scheduling meetings with complainants that reflect the current date as the initial contact date. The supplemental investigation undertaken by the agency does not appear to have focused on these issues. We are not satisfied that the agency has adequately refuted the concerns raised by appellant with regard to his contacts with the EEO Office prior to May 3, 1994. Upon review of the entire record, we find that although appellant appears to have had a reasonable suspicion of discrimination when he learned of his nonselection on March 4, 1994, there is sufficient reason to believe that appellant may have been delayed in pursuing the EEO process either deliberately or inadvertently by the EEO Office. Therefore, we find that sufficient grounds exists for an extension of the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: Feb 24, 1999 DATE Ronnie Blumenthal, Director Office of Federal Operations 1EEOC Appeal Nos. 01981735, 01981736, 01981737, and 01981738.	[ "Willie L. Webb v. Department of the Treasury, EEOC Appeal No. 01965672 (July 23, 1997)", "Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)" ]	[ -0.10369482636451721, 0.09328996390104294, 0.015875903889536858, -0.036783184856176376, 0.035547684878110886, 0.01709567941725254, 0.04268166795372963, 0.04387979581952095, -0.024521149694919586, 0.05445851758122444, 0.028562670573592186, -0.02745155617594719, -0.05218595638871193, 0.00665...
24	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181690.txt	0120181690.txt	TXT	text/plain	12,031	Alene S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.	March 23, 2018	Appeal Number: 0120181690 Complaint Allegations: In her complaint, Complainant alleged that the Agency discriminated against her based on race and sex when (1) on October 27, 2017, it issued Complainant an overall annual performance appraisal rating of "Exceeded", and (2) it determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. Background: At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contact Representative at an Agency service center in Kansas City, Missouri. Complainant initiated EEO contact alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when (1) on October 27, 2017, the Agency issued Complainant an overall annual performance appraisal rating of "Exceeded" for the year ending September 30, 2017. On March 16, 2018, Complainant filed a formal complaint reiterating the above allegation and alleging discrimination when (2) the Agency determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. In a final agency decision, dated March 23, 2018, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant initiated EEO contact on January 12, 2018 and the adverse actions she alleged occurred more than 45 days from that date. The Agency stated that Complainant did not present a justification that would warrant waiver, estoppel, or tolling of the regulatory timeframe. The instant appeal from Complainant followed. Complainant stated that she filed an appeal of her October 2017 rating, and, on December 4, 2017, the Agency failed to change the rating to "Outstanding." Complainant stated that she contacted an EEO Counselor (C1), on December 4, 2017, via Skype "asking what were the steps for the outside EEO process." Complainant stated that she made a phone appointment with C1 for December 6, 2017, and C1 tried to dissuade her from proceeding. Complainant stated that C1 informed her that she had until January 18, 2018 to finalize her claim. Complainant stated, on January 9, 2018, she told a Service Center Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 again on January 12, 2018 about the EEO intake process and C1 stated January 12 would be her initial contact date. Complainant stated, due to C1's unavailability, she did not receive her pre-complaint package until February 5, 2018. The record contains an email chain, including December 4, 2017, in which Complainant asked C1 about the steps for the EEO process. The record also contains an Agency Grievance and Authorization for Representative's Access to Official Records, dated November 8, 2017, regarding Complainant's 2017 performance rating. (The Agency Grievance indicates that Complainant is not a bargaining unit employee.) 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 untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contact Representative at an Agency service center in Kansas City, Missouri. Complainant initiated EEO contact alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when (1) on October 27, 2017, the Agency issued Complainant an overall annual performance appraisal rating of "Exceeded" for the year ending September 30, 2017. On March 16, 2018, Complainant filed a formal complaint reiterating the above allegation and alleging discrimination when (2) the Agency determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. In a final agency decision, dated March 23, 2018, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant initiated EEO contact on January 12, 2018 and the adverse actions she alleged occurred more than 45 days from that date. The Agency stated that Complainant did not present a justification that would warrant waiver, estoppel, or tolling of the regulatory timeframe. The instant appeal from Complainant followed. Complainant stated that she filed an appeal of her October 2017 rating, and, on December 4, 2017, the Agency failed to change the rating to "Outstanding." Complainant stated that she contacted an EEO Counselor (C1), on December 4, 2017, via Skype "asking what were the steps for the outside EEO process." Complainant stated that she made a phone appointment with C1 for December 6, 2017, and C1 tried to dissuade her from proceeding. Complainant stated that C1 informed her that she had until January 18, 2018 to finalize her claim. Complainant stated, on January 9, 2018, she told a Service Center Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 again on January 12, 2018 about the EEO intake process and C1 stated January 12 would be her initial contact date. Complainant stated, due to C1's unavailability, she did not receive her pre-complaint package until February 5, 2018. The record contains an email chain, including December 4, 2017, in which Complainant asked C1 about the steps for the EEO process. The record also contains an Agency Grievance and Authorization for Representative's Access to Official Records, dated November 8, 2017, regarding Complainant's 2017 performance rating. (The Agency Grievance indicates that Complainant is not a bargaining unit employee.) ANALYSIS AND FINDINGS 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. In her complaint, Complainant alleged that the Agency discriminated against her based on race and sex when (1) on October 27, 2017, it issued Complainant an overall annual performance appraisal rating of "Exceeded", and (2) it determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. The record in this matter shows that, on November 8, 2017, Complainant filed an administrative grievance with the Agency regarding her 2017 performance rating. The record discloses that the most recent alleged discriminatory event occurred on October 27, 2017, but Complainant did not initiate contact with an EEO Counselor until January 12, 2018, which is beyond the forty-five (45) day limitation period. 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 Complainant's electronic communication to an EEO Counselor, C1, on December 4, 2017 did not satisfy EEOC Regulations regarding EEO contact. While a complainant may satisfy the requirement 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, Complainant did not satisfy the latter element. Complainant did not exhibit an intent to begin the EEO process prior to contacting C1 on January 12, 2018 regarding the alleged discriminatory event occurring on October 27, 2017. Moreover, Complainant has not shown that she was unaware of the time limitations for seeking EEO counseling or that she was prevented by reasons beyond her control from contacting an EEO Counselor in a timely manner. Complainant stated that she contacted C1 on December 4, 2017 "asking what were the steps for the outside EEO process" and, on January 9, 2018, told an Agency Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 on January 12, 2018 about the EEO intake process. The circumstances herein do not show an intent to start the EEO process until January 12, 2018, which is untimely for claims (1) and (2). An employee may use an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process2, however, the Commission has consistently held that utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Black v. Dep't. of the Interior, EEOC Appeal No. 0120112351 (August 19, 2011).	Alene S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120181690 Agency No. IRS180271F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 23, 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. 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 events giving rise to this complaint, Complainant worked as a Supervisory Contact Representative at an Agency service center in Kansas City, Missouri. Complainant initiated EEO contact alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when (1) on October 27, 2017, the Agency issued Complainant an overall annual performance appraisal rating of "Exceeded" for the year ending September 30, 2017. On March 16, 2018, Complainant filed a formal complaint reiterating the above allegation and alleging discrimination when (2) the Agency determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. In a final agency decision, dated March 23, 2018, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant initiated EEO contact on January 12, 2018 and the adverse actions she alleged occurred more than 45 days from that date. The Agency stated that Complainant did not present a justification that would warrant waiver, estoppel, or tolling of the regulatory timeframe. The instant appeal from Complainant followed. Complainant stated that she filed an appeal of her October 2017 rating, and, on December 4, 2017, the Agency failed to change the rating to "Outstanding." Complainant stated that she contacted an EEO Counselor (C1), on December 4, 2017, via Skype "asking what were the steps for the outside EEO process." Complainant stated that she made a phone appointment with C1 for December 6, 2017, and C1 tried to dissuade her from proceeding. Complainant stated that C1 informed her that she had until January 18, 2018 to finalize her claim. Complainant stated, on January 9, 2018, she told a Service Center Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 again on January 12, 2018 about the EEO intake process and C1 stated January 12 would be her initial contact date. Complainant stated, due to C1's unavailability, she did not receive her pre-complaint package until February 5, 2018. The record contains an email chain, including December 4, 2017, in which Complainant asked C1 about the steps for the EEO process. The record also contains an Agency Grievance and Authorization for Representative's Access to Official Records, dated November 8, 2017, regarding Complainant's 2017 performance rating. (The Agency Grievance indicates that Complainant is not a bargaining unit employee.) ANALYSIS AND FINDINGS 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. In her complaint, Complainant alleged that the Agency discriminated against her based on race and sex when (1) on October 27, 2017, it issued Complainant an overall annual performance appraisal rating of "Exceeded", and (2) it determined Complainant's 2015 and 2016 annual performance ratings and monetary awards improperly. The record in this matter shows that, on November 8, 2017, Complainant filed an administrative grievance with the Agency regarding her 2017 performance rating. The record discloses that the most recent alleged discriminatory event occurred on October 27, 2017, but Complainant did not initiate contact with an EEO Counselor until January 12, 2018, which is beyond the forty-five (45) day limitation period. 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 Complainant's electronic communication to an EEO Counselor, C1, on December 4, 2017 did not satisfy EEOC Regulations regarding EEO contact. While a complainant may satisfy the requirement 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, Complainant did not satisfy the latter element. Complainant did not exhibit an intent to begin the EEO process prior to contacting C1 on January 12, 2018 regarding the alleged discriminatory event occurring on October 27, 2017. Moreover, Complainant has not shown that she was unaware of the time limitations for seeking EEO counseling or that she was prevented by reasons beyond her control from contacting an EEO Counselor in a timely manner. Complainant stated that she contacted C1 on December 4, 2017 "asking what were the steps for the outside EEO process" and, on January 9, 2018, told an Agency Director "the only reason I have not already filed EEO is because [you are] new to the Service Center I didn't want it to appear as a negative reflection on [you]." Complainant stated that she contacted C1 on January 12, 2018 about the EEO intake process. The circumstances herein do not show an intent to start the EEO process until January 12, 2018, which is untimely for claims (1) and (2). An employee may use an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process2, however, the Commission has consistently held that utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Black v. Dep't. of the Interior, EEOC Appeal No. 0120112351 (August 19, 2011). CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 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 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 23, 2018 __________________ Date 2 See Diefenderfer v. Dep't. of Transportation, EEOC Appeal No. 01980578 (October 7, 1998). ------------------------------------------------------------ ------------------------------------------------------------	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "EEO Counselor. See Black v. Dep't. of the Interior, EEOC Appeal No. 0120112351 (August 19, 2011)", "Diefenderfer v. Dep't. of Transportation, EEOC Appeal No. 01980578 (October 7, 1998)", "29 C.F.R. § 1614.107(a)", "29 C.F.R....	[ -0.07423511892557144, 0.08700668811798096, -0.00982818752527237, 0.05197884142398834, 0.019937459379434586, 0.01066878903657198, 0.004145333543419838, -0.0013157589128240943, -0.02781415916979313, 0.00010017202293965966, -0.00420059310272336, -0.029430299997329712, -0.016119617968797684, -...
25	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520110176.txt	0520110176.txt	TXT	text/plain	11,145	Charmaine L. Anderson, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.	November 18, 2010	Appeal Number: 0120080706 Background: In the underlying case, Complainant raised seven separate claims of harassment and discrimination on the bases of race (African-American), disability (visual impairment), and reprisal for prior protected EEO activity. In a Partial Acceptance Letter dated July 21, 2006, the Agency accepted claims 4 - 7 for investigation and dismissed claims 1 - 3, pursuant to 29 C.F.R. § 1614.107(a)(1), because Complainant had previously withdrawn an informal complaint consisting of the same claims. The Commission affirmed the Agency's final decision. As to the dismissed claims, the appellate decision found that the Agency's dismissal was proper. Complainant maintained that she was coerced into withdrawing her informal complaint because an EEO Official did not inform her that she could have continued with her complaint while she had "medical uncertainties." However, the appellate decision found that such conduct was not coercion and that Complainant's e-mails revealed that she knowingly and voluntarily withdrew her informal complaint. Although Complainant contended that the EEO Counselor's Report was missing two out of eleven pages, the appellate decision found that it was "harmless error" because Complainant did not show that it harmed her ability to litigate her claims. As to the accepted claims, the appellate decision found that Complainant failed to establish that the Agency discriminated against her as alleged. ARGUMENTS ON RECONSIDERATION In her request for reconsideration, Complainant asserted that the appellate decision involved a clearly erroneous interpretation of material fact or law because the Agency tampered with her case file and deliberately destroyed evidence. First, Complainant argued that a Civil Rights Program Manager (PM) illegally switched her EEO Counselor's Report to grant a partial investigation of some of her claims instead of a full investigation of all of her claims. In support of her argument, Complainant asserted that, despite the EEO Counselor (EC) telling her she was granting a full investigation, the EEO Counselor's Report in the record granted only a partial investigation. Complainant referred to a June 14, 2006 Fax Transmittal Cover Sheet in which EC wrote, "Attached is the EEO Counselor's Report for [Complainant]." Complainant asserted that the document shows that EC faxed the report, but that EC's report was not placed in her case file and PM substituted another report instead. Complainant asserted that PM's actions were not "harmless error" as stated in the appellate decision because, if PM had not changed the EEO Counselor's Report, all the claims she raised would have been investigated and substantiated by the Investigator. Second, Complainant argued that PM discarded evidence out of her case file such as attachments, e-mails, and other documentation. In support of her argument, Complainant asserted that the Agency "validated" her allegations that the documents were deliberately destroyed when it mentioned the missing documents in a September 6, 2007 letter outlining its efforts to locate and provide the documents that Complainant maintained were missing. In response, the Agency asserted that Complainant's arguments are a repackaged second appeal to the Commission, which repeats the same unsupported allegations and arguments she made in support of her original 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(b). ISSUE PRESENTED The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. BACKGROUND In the underlying case, Complainant raised seven separate claims of harassment and discrimination on the bases of race (African-American), disability (visual impairment), and reprisal for prior protected EEO activity. In a Partial Acceptance Letter dated July 21, 2006, the Agency accepted claims 4 - 7 for investigation and dismissed claims 1 - 3, pursuant to 29 C.F.R. § 1614.107(a)(1), because Complainant had previously withdrawn an informal complaint consisting of the same claims. The Commission affirmed the Agency's final decision. As to the dismissed claims, the appellate decision found that the Agency's dismissal was proper. Complainant maintained that she was coerced into withdrawing her informal complaint because an EEO Official did not inform her that she could have continued with her complaint while she had "medical uncertainties." However, the appellate decision found that such conduct was not coercion and that Complainant's e-mails revealed that she knowingly and voluntarily withdrew her informal complaint. Although Complainant contended that the EEO Counselor's Report was missing two out of eleven pages, the appellate decision found that it was "harmless error" because Complainant did not show that it harmed her ability to litigate her claims. As to the accepted claims, the appellate decision found that Complainant failed to establish that the Agency discriminated against her as alleged. ARGUMENTS ON RECONSIDERATION In her request for reconsideration, Complainant asserted that the appellate decision involved a clearly erroneous interpretation of material fact or law because the Agency tampered with her case file and deliberately destroyed evidence. First, Complainant argued that a Civil Rights Program Manager (PM) illegally switched her EEO Counselor's Report to grant a partial investigation of some of her claims instead of a full investigation of all of her claims. In support of her argument, Complainant asserted that, despite the EEO Counselor (EC) telling her she was granting a full investigation, the EEO Counselor's Report in the record granted only a partial investigation. Complainant referred to a June 14, 2006 Fax Transmittal Cover Sheet in which EC wrote, "Attached is the EEO Counselor's Report for [Complainant]." Complainant asserted that the document shows that EC faxed the report, but that EC's report was not placed in her case file and PM substituted another report instead. Complainant asserted that PM's actions were not "harmless error" as stated in the appellate decision because, if PM had not changed the EEO Counselor's Report, all the claims she raised would have been investigated and substantiated by the Investigator. Second, Complainant argued that PM discarded evidence out of her case file such as attachments, e-mails, and other documentation. In support of her argument, Complainant asserted that the Agency "validated" her allegations that the documents were deliberately destroyed when it mentioned the missing documents in a September 6, 2007 letter outlining its efforts to locate and provide the documents that Complainant maintained were missing. In response, the Agency asserted that Complainant's arguments are a repackaged second appeal to the Commission, which repeats the same unsupported allegations and arguments she made in support of her original appeal. ANALYSIS AND FINDINGS The requesting party must submit any supporting documents or brief at the time the request is filed. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII (Nov. 9, 1999). Complainant filed the request for reconsideration on December 6, 2010 and filed a rebuttal to the Agency's response on December 31, 2010. We decline to consider Complainant's statement submitted on December 31, 2010, as it was untimely pursuant to EEO MD-110. Upon review, we find that Complainant's request does not establish that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. We note that Complainant made similar arguments on appeal involving Agency tampering and remind her that a "request for reconsideration is not a second appeal to the Commission." EEO MD-110, at Ch. 9, § VI.A. As to her first argument, we note that Complainant appears to be confusing the June 14, 2006 EEO Counselor's Report with the Agency's July 21, 2006 Partial Acceptance Letter. In her request for reconsideration, Complainant referenced "Attachment 9, Page 2" and wrote, "There was a major problem when I finally received [EC]'s report granting me a full investigation - it wasn't her report. It was [PM]'s report granting me a partial investigation." A review of "Attachment 9, Page 2" reflects that it is the Agency's July 21, 2006 Partial Acceptance Letter, not the EEO Counselor's Report. Although Complainant argued that PM "switched" the EEO Counselor's Report in order to grant her a partial investigation instead of a full investigation, we emphasize that the EEO Counselor's Report is a completely separate document from the Agency's Partial Acceptance Letter. EEO MD-110 describes in detail the procedures that must be followed when processing complaints of discrimination filed by federal employees. The language in EEO MD-110 clearly indicates that the role of the EEO Counselor does not include determining what claims are accepted for investigation. EEO MD-110 states, "The Counselor must submit to the office designated to accept formal complaints and to the complainant the report of inquiry ... Within reasonable time after receipt of the written report from the EEO Counselor, the agency should send the complainant a second letter (commonly referred to as an 'acceptance' letter), stating the claims asserted and to be investigated. EEO MD-110, at Ch. 2, § VII and Ch. 5, § I. A review of the record reflects that the June 14, 2006 EEO Counselor's Report is signed by EC. In addition, based on the fax headers on the June 14, 2006 Fax Transmittal Cover Sheet and the June 14, 2006 EEO Counselor's Report, it appears that both were part of the same facsimile transmission from EC. There is no evidence that the EEO Counselor's Report sent by EC is not the EEO Counselor's Report in the record. To the extent that Complainant argued that her claims were improperly dismissed in the July 21, 2006 Agency Partial Acceptance Letter, we reiterate the appellate decision's finding that the dismissal was proper because she knowingly and voluntarily withdrew her informal complaint. As to her second argument, we disagree with Complainant's assertion that the Agency "validated" her allegations that the documents were deliberately destroyed in its September 6, 2007 letter. In that letter, the Agency acknowledged that it could not find the attachments to ROI Exhibit 12 (March 31, 2006 letter) that Complainant claimed were missing. However, the Agency also noted the following: "Complainant continues to argue that the missing attachments are proof that her case has been 'tampered' with. The fact that two independent offices, SBCR and OIG ... have the March 31 letter but do not have the attachments indicates that Complainant may be confused about what documentation she has provided, rather than proof of 'tampering' of the Complainant's case." Based on the above, we note that the Agency's response does not "validate" Complainant's allegations that the documents were deliberately destroyed.	Charmaine L. Anderson, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency. Request No. 0520110176 Appeal No. 0120080706 EEOC No. 531-2007-00154X Agency Nos. NRC-06-11, NRC-07-02 DENIAL Complainant timely requested reconsideration of the decision in Charmaine L. Anderson v. Nuclear Regulatory Commission, EEOC Appeal No. 0120080706 (November 18, 2010). 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). ISSUE PRESENTED The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. BACKGROUND In the underlying case, Complainant raised seven separate claims of harassment and discrimination on the bases of race (African-American), disability (visual impairment), and reprisal for prior protected EEO activity. In a Partial Acceptance Letter dated July 21, 2006, the Agency accepted claims 4 - 7 for investigation and dismissed claims 1 - 3, pursuant to 29 C.F.R. § 1614.107(a)(1), because Complainant had previously withdrawn an informal complaint consisting of the same claims. The Commission affirmed the Agency's final decision. As to the dismissed claims, the appellate decision found that the Agency's dismissal was proper. Complainant maintained that she was coerced into withdrawing her informal complaint because an EEO Official did not inform her that she could have continued with her complaint while she had "medical uncertainties." However, the appellate decision found that such conduct was not coercion and that Complainant's e-mails revealed that she knowingly and voluntarily withdrew her informal complaint. Although Complainant contended that the EEO Counselor's Report was missing two out of eleven pages, the appellate decision found that it was "harmless error" because Complainant did not show that it harmed her ability to litigate her claims. As to the accepted claims, the appellate decision found that Complainant failed to establish that the Agency discriminated against her as alleged. ARGUMENTS ON RECONSIDERATION In her request for reconsideration, Complainant asserted that the appellate decision involved a clearly erroneous interpretation of material fact or law because the Agency tampered with her case file and deliberately destroyed evidence. First, Complainant argued that a Civil Rights Program Manager (PM) illegally switched her EEO Counselor's Report to grant a partial investigation of some of her claims instead of a full investigation of all of her claims. In support of her argument, Complainant asserted that, despite the EEO Counselor (EC) telling her she was granting a full investigation, the EEO Counselor's Report in the record granted only a partial investigation. Complainant referred to a June 14, 2006 Fax Transmittal Cover Sheet in which EC wrote, "Attached is the EEO Counselor's Report for [Complainant]." Complainant asserted that the document shows that EC faxed the report, but that EC's report was not placed in her case file and PM substituted another report instead. Complainant asserted that PM's actions were not "harmless error" as stated in the appellate decision because, if PM had not changed the EEO Counselor's Report, all the claims she raised would have been investigated and substantiated by the Investigator. Second, Complainant argued that PM discarded evidence out of her case file such as attachments, e-mails, and other documentation. In support of her argument, Complainant asserted that the Agency "validated" her allegations that the documents were deliberately destroyed when it mentioned the missing documents in a September 6, 2007 letter outlining its efforts to locate and provide the documents that Complainant maintained were missing. In response, the Agency asserted that Complainant's arguments are a repackaged second appeal to the Commission, which repeats the same unsupported allegations and arguments she made in support of her original appeal. ANALYSIS AND FINDINGS The requesting party must submit any supporting documents or brief at the time the request is filed. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII (Nov. 9, 1999). Complainant filed the request for reconsideration on December 6, 2010 and filed a rebuttal to the Agency's response on December 31, 2010. We decline to consider Complainant's statement submitted on December 31, 2010, as it was untimely pursuant to EEO MD-110. Upon review, we find that Complainant's request does not establish that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. We note that Complainant made similar arguments on appeal involving Agency tampering and remind her that a "request for reconsideration is not a second appeal to the Commission." EEO MD-110, at Ch. 9, § VI.A. As to her first argument, we note that Complainant appears to be confusing the June 14, 2006 EEO Counselor's Report with the Agency's July 21, 2006 Partial Acceptance Letter. In her request for reconsideration, Complainant referenced "Attachment 9, Page 2" and wrote, "There was a major problem when I finally received [EC]'s report granting me a full investigation - it wasn't her report. It was [PM]'s report granting me a partial investigation." A review of "Attachment 9, Page 2" reflects that it is the Agency's July 21, 2006 Partial Acceptance Letter, not the EEO Counselor's Report. Although Complainant argued that PM "switched" the EEO Counselor's Report in order to grant her a partial investigation instead of a full investigation, we emphasize that the EEO Counselor's Report is a completely separate document from the Agency's Partial Acceptance Letter. EEO MD-110 describes in detail the procedures that must be followed when processing complaints of discrimination filed by federal employees. The language in EEO MD-110 clearly indicates that the role of the EEO Counselor does not include determining what claims are accepted for investigation. EEO MD-110 states, "The Counselor must submit to the office designated to accept formal complaints and to the complainant the report of inquiry ... Within reasonable time after receipt of the written report from the EEO Counselor, the agency should send the complainant a second letter (commonly referred to as an 'acceptance' letter), stating the claims asserted and to be investigated. EEO MD-110, at Ch. 2, § VII and Ch. 5, § I. A review of the record reflects that the June 14, 2006 EEO Counselor's Report is signed by EC. In addition, based on the fax headers on the June 14, 2006 Fax Transmittal Cover Sheet and the June 14, 2006 EEO Counselor's Report, it appears that both were part of the same facsimile transmission from EC. There is no evidence that the EEO Counselor's Report sent by EC is not the EEO Counselor's Report in the record. To the extent that Complainant argued that her claims were improperly dismissed in the July 21, 2006 Agency Partial Acceptance Letter, we reiterate the appellate decision's finding that the dismissal was proper because she knowingly and voluntarily withdrew her informal complaint. As to her second argument, we disagree with Complainant's assertion that the Agency "validated" her allegations that the documents were deliberately destroyed in its September 6, 2007 letter. In that letter, the Agency acknowledged that it could not find the attachments to ROI Exhibit 12 (March 31, 2006 letter) that Complainant claimed were missing. However, the Agency also noted the following: "Complainant continues to argue that the missing attachments are proof that her case has been 'tampered' with. The fact that two independent offices, SBCR and OIG ... have the March 31 letter but do not have the attachments indicates that Complainant may be confused about what documentation she has provided, rather than proof of 'tampering' of the Complainant's case." Based on the above, we note that the Agency's response does not "validate" Complainant's allegations that the documents were deliberately destroyed. CONCLUSION 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 EEOC Appeal No. 0120080706 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 (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 _____4/28/11_____________ Date	[ "Charmaine L. Anderson v. Nuclear Regulatory Commission, EEOC Appeal No. 0120080706 (November 18, 2010)", "29 C.F.R. § 1614.405(b)", "29 C.F.R. § 1614.107(a)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.03886821120977402, 0.06870632618665695, 0.0007262287545017898, 0.0690324455499649, 0.02309851534664631, 0.03129401057958603, 0.02810484915971756, 0.013329843990504742, -0.024535205215215683, 0.03204613924026489, 0.04797983914613724, 0.024236494675278664, -0.013098251074552536, 0.0146276...
26	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a45304.txt	01a45304.txt	TXT	text/plain	10,350	John E. Ozier v. National Archives and Records Administration 01A45304 December 2, 2004 . John E. Ozier, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.	December 2, 2004	Appeal Number: 01A45304 Legal Analysis: the Commission from the agency's decision dated July 6, 2004. The decision dismissed 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. Complainant initiated contact with the EEO office claiming that he was the victim of discrimination on the bases of sex (male) and age (D.O.B. March 4, 1953) when on March 22, 2004, the Assistant Director of his division denied his appeal to change his performance rating from unsuccessful to successful.<1> In its final decision, the agency dismissed the complaint on grounds of untimely EEO Counselor contact. Specifically, the agency determined that as complainant had learned of his unacceptable performance rating on December 3, 2003, the date on which he signed the appraisal, he had or should have had reasonable suspicion of the alleged discrimination by that date. As such, the agency contends that when he finally contacted the EEO Counselor on April 2, 2004, it was too late. According to the agency, he should have initiated the contact within forty-five days from December 3, 2003. See Agency Mem. in Opp'n to Appellant's Appeal, at 2. On appeal, complainant argues that he had made timely contact with an EEO Counselor in December 2003, but that the Counselor advised him to delay making a formal complaint until complainant had exhausted the internal remedies he pursued at that time. See Appeal, at 1. Complainant alleges that the Counselor gave him this erroneous advice as part of a conspiracy aimed at having his complaint denied. See id. at 1-2, 4. This case boils down to determining whether complainant adequately contacted an EEO Counselor to initiate the EEO process when he first visited with the Counselor in December 2003. 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 forty-five days of the effective date of the action. The Commission has held repeatedly that to establish contact, the complainant must (1) contact an agency official logically connected to the EEO process, and (2) exhibit an intent to begin the EEO process. Ryan v. United States Postal Serv., EEOC Appeal No. 01A05508, at 3 (Oct. 30, 2002); see also Dehaan v. Dep't of Labor, EEOC Appeal No. 01A10009, at 1 (Aug. 2, 2001); Harris v. Dep't of Navy, EEOC Appeal No. 01991170, at 2 (Apr. 18, 2001) (citing EEOC Management Directive (MD-110), at 2-1 (Nov. 9, 1999)). The Commission finds that although complainant contacted the appropriate individual within the proper time frame, in December 2003, he lacked the requisite intent to initiate the EEO process at that time. In reaching this	John E. Ozier v. National Archives and Records Administration 01A45304 December 2, 2004 . John E. Ozier, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency. Appeal No. 01A45304 Agency No. 0413STL Complainant filed a timely appeal with the Commission from the agency's decision dated July 6, 2004. The decision dismissed 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. Complainant initiated contact with the EEO office claiming that he was the victim of discrimination on the bases of sex (male) and age (D.O.B. March 4, 1953) when on March 22, 2004, the Assistant Director of his division denied his appeal to change his performance rating from unsuccessful to successful.<1> In its final decision, the agency dismissed the complaint on grounds of untimely EEO Counselor contact. Specifically, the agency determined that as complainant had learned of his unacceptable performance rating on December 3, 2003, the date on which he signed the appraisal, he had or should have had reasonable suspicion of the alleged discrimination by that date. As such, the agency contends that when he finally contacted the EEO Counselor on April 2, 2004, it was too late. According to the agency, he should have initiated the contact within forty-five days from December 3, 2003. See Agency Mem. in Opp'n to Appellant's Appeal, at 2. On appeal, complainant argues that he had made timely contact with an EEO Counselor in December 2003, but that the Counselor advised him to delay making a formal complaint until complainant had exhausted the internal remedies he pursued at that time. See Appeal, at 1. Complainant alleges that the Counselor gave him this erroneous advice as part of a conspiracy aimed at having his complaint denied. See id. at 1-2, 4. This case boils down to determining whether complainant adequately contacted an EEO Counselor to initiate the EEO process when he first visited with the Counselor in December 2003. 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 forty-five days of the effective date of the action. The Commission has held repeatedly that to establish contact, the complainant must (1) contact an agency official logically connected to the EEO process, and (2) exhibit an intent to begin the EEO process. Ryan v. United States Postal Serv., EEOC Appeal No. 01A05508, at 3 (Oct. 30, 2002); see also Dehaan v. Dep't of Labor, EEOC Appeal No. 01A10009, at 1 (Aug. 2, 2001); Harris v. Dep't of Navy, EEOC Appeal No. 01991170, at 2 (Apr. 18, 2001) (citing EEOC Management Directive (MD-110), at 2-1 (Nov. 9, 1999)). The Commission finds that although complainant contacted the appropriate individual within the proper time frame, in December 2003, he lacked the requisite intent to initiate the EEO process at that time. In reaching this conclusion, the Commission takes note that in cases of untimeliness the agency bears the burden of proof, and here, the agency met its burden whereas the complainant failed to rebut adequately. As part of its proof, the agency submitted a declaration from the EEO Counselor in which he explains that complainant told him at their first meeting that complainant was not interested in pursuing EEO counseling at that time. Decl. of EEO Counselor, dated Sept. 29, 2004. Complainant, on the other hand, does not submit any evidence to support his position that he had wanted to pursue counseling but that the Counselor told him to wait until complainant heard back from his supervisor. This failure to substantiate his claim is fatal to complainant's appeal,<2> particularly as complainant was a former EEO Counselor. The Commission finds it highly irregular that a person with such knowledge and experience of the EEO process could not know about the strict deadlines and the requisite intent that a complainant must convey to a Counselor in order to initiate EEO counseling. Furthermore, the Commission has adopted a reasonable suspicion standard (as opposed to a supportive facts standard) to determine when the forty-five day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 0590852 (Feb. 11, 1999). A fair reading of the pre-complaint documents, the formal complaint, and the complainant's arguments on appeal suggest that complainant should have developed a reasonable suspicion of discrimination when on December 3, 2003, he signed his work evaluation which had been rated as unsuccessful. See Van Dusen v. Dep't of the Air Force, EEOC Appeal No. 01A34171, at 2 (Jan. 15, 2004) (finding that complainant had or should have had a reasonable suspicion of unlawful employment discrimination upon receipt of his performance appraisal). As such, complainant should have initiated EEO Counselor contact within forty-five days of signing his appraisal. The Commission also agrees with the agency with regard to the effect of pursuing an internal agency appeal on the time limits for contacting an EEO Counselor. The Commission has repeatedly held that internal appeals, grievances, or informal efforts to challenge an agency's adverse action do not toll the running of the time to contact an EEO Counselor. Foreman v. United States Postal Serv., EEOC Appeal No. 01A44580, at 2 (Sept. 28, 2004). As stated above, the EEO Counselor stated that he informed complainant at their first meeting of the deadlines for starting the EEO process. The record, however, suggests that complainant chose to disregard this information and independently pursue internal remedies. In light of the foregoing, the Commission finds that complainant initiated EEO Counselor contact beyond the forty-five day time limit. On appeal, complainant provided no argument warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the Commission finds that the agency properly dismissed his complaint. 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 2, 2004 __________________ Date 1 On appeal, complainant also alleges that race motivated the agency's action. 2 For instance, the Commission would have found it helpful to review statements from the witnesses who complainant claims accompanied him to a meeting with the EEO Counselor. See Appeal, at 1. Complainant suggests that he brought along those individuals so that they could attest to the matters discussed at the meeting should any dispute arise. A dispute has now arisen, but no statements are in the record to help bolster complainant's claim.	[ "Howard v. Dep't of the Navy, EEOC Request No. 0590852 (Feb. 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)", "42 U.S.C. § 2000e", "29 U.S.C. § 621", "29 U.S.C. §§ 791" ]	[ -0.09831159561872482, 0.12857797741889954, -0.025378219783306122, 0.08950671553611755, 0.06483793258666992, 0.08293335884809494, -0.0057484861463308334, 0.02427481673657894, -0.02666827291250229, 0.010514083318412304, 0.015136366710066795, 0.025284817442297935, -0.013836728408932686, 0.014...
27	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120111935.txt	0120111935.txt	TXT	text/plain	14,603	Wilma Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.	January 19, 2011	Appeal Number: 0120111935 Background: At the time of events giving rise to this complaint, Complainant worked as a Program Support Clerk at the Agency's G.V. Sonny Montgomery Medical Center in Jackson, Mississippi. Complainant filed a formal complaint dated December 10, 2010, alleging that the Agency subjected her to discrimination on the basis of disability when: 1. On December 23, 2009, Complainant's request for an equitable position was denied. 2. On April 2, 2010, Complainant's supervisor (S1) denied her a reasonable accommodation. 3. On November 4, 2010, during mediation, the job criteria for a position was changed which caused the Agency not to settle the complaint. The Agency dismissed issues (1) and (2), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant did not initiate contact with an EEO Counselor until August 24, 2010, which was beyond the applicable limitations period. The Agency noted Complainant was aware or should have been aware of the applicable time limits for contacting an EEO Counselor. Additionally, the Agency dismissed issue (3), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted that participation in mediation and settlement of a complaint is strictly voluntary and confidential. The Agency noted that settlement of a complaint is not guaranteed. The Agency determined that comments made during mediation that cause an Agency not to settle the complaint, cannot give rise to an EEO complaint. On appeal, Complainant provides a detailed account of her employment history with the Agency. Complainant acknowledges that she signed her paperwork late, but she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly. She also states that she broke out in the shingles and started suffering from Post Traumatic Stress Disorder (PTSD). Legal Analysis: the Commission AFFIRMS the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Clerk at the Agency's G.V. Sonny Montgomery Medical Center in Jackson, Mississippi. Complainant filed a formal complaint dated December 10, 2010, alleging that the Agency subjected her to discrimination on the basis of disability when: 1. On December 23, 2009, Complainant's request for an equitable position was denied. 2. On April 2, 2010, Complainant's supervisor (S1) denied her a reasonable accommodation. 3. On November 4, 2010, during mediation, the job criteria for a position was changed which caused the Agency not to settle the complaint. The Agency dismissed issues (1) and (2), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant did not initiate contact with an EEO Counselor until August 24, 2010, which was beyond the applicable limitations period. The Agency noted Complainant was aware or should have been aware of the applicable time limits for contacting an EEO Counselor. Additionally, the Agency dismissed issue (3), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted that participation in mediation and settlement of a complaint is strictly voluntary and confidential. The Agency noted that settlement of a complaint is not guaranteed. The Agency determined that comments made during mediation that cause an Agency not to settle the complaint, cannot give rise to an EEO complaint. On appeal, Complainant provides a detailed account of her employment history with the Agency. Complainant acknowledges that she signed her paperwork late, but she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly. She also states that she broke out in the shingles and started suffering from Post Traumatic Stress Disorder (PTSD). ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the agency extends the time limits in accordance with § 1614.604(c). 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. The record reveals that Complainant attended EEO related training when she attended the New Employee Training Orientation on July 15, 2009, Prevention of Sexual Harassment training on July 15, 2009, No Fear Act training on July 15, 2009, ADR Mediation training on July 15, 2009, and EEO training on July 15, 2009. The record reveals that these courses discussed the EEO complaint process, including the requirement to contact an EEO Counselor within the applicable 45-day time frame. With regard to issue (1), the record discloses that the alleged discriminatory event occurred on December 23, 2009. With regard to issue (2), the record reveals that on July 31, 2009, Complainant requested that Dragon Naturally Speaking (DNS) Equipment be installed on her computer as a reasonable accommodation for her claimed disability. The record reveals that on September 4, 2009, the Agency installed DNS on Complainant's computer in the back of the unit. Complainant stated that she felt the Agency did not provide her a reasonable accommodation because the Agency did not provide DNS on the reception area computers which she states she also had to use. The record reveals that Complainant submitted a resignation letter to the Agency on March 16, 2010, with an effective date of resignation on April 4, 2010. Although Complainant listed April 4, 2010, as the date she was denied accommodation, we note that the denial of accommodation was an ongoing issue for Complainant from September 2009, through her last day of employment with the Agency on April 4, 2010. Complainant alleged that she contacted the EEOC Office in Birmingham, Alabama during the last week of December 2009 and again in January 2010, regarding her denial of accommodation claim. Complainant stated that she received a letter from the EEOC in January 2010, advising her to contact the Agency in reference to her denial of accommodation claim. The record does not contain a copy of any letter from the EEOC. The record reveals that on January 21, 2010, Complainant requested EEO counseling regarding a claim that she was subjected to harassment based on her disability beginning on January 11, 2010 (Agency No. 2003-0586-2010101425). There is no indication that Complainant raised issues (1), (2), or (3) with an EEO Counselor during the processing of Agency No. 2003-0586-2010101425. Nor does Complainant contend on appeal that she raised the issues in the present complaint during the processing of her prior complaint. Complainant contends that in February 2010, she contacted the EEO Program Manager regarding her concerns of discrimination. The record contains a Report of Contact from the EEO Case Manager. The EEO Case Manager stated he spoke with the EEO Program Manager and that the EEO Program Manager remembered meeting with Complainant. The EEO Program Manager stated the conversation concerned an adverse relationship between Complainant and a co-worker. The EEO Program Manager stated that when an employee contacts him concerning an EEO complaint, he advises them that he is not an Office of Resolution Management (ORM) EEO Counselor and provides the individual an explanation of the complaint process. The EEO Program Manager stated he also advises them that ORM's Central Plains Operations has jurisdiction for processing EEO complaints for the Medical Center. The EEO Program Manager stated he also provides each individual a pamphlet outlining the complaint process which advises that "If you feel that you have been discriminated against and wish to file an EEO complaint, you must contact an ORM counselor within 45 calendar days of the alleged incident." Upon review, we find Complainant had knowledge of the applicable time frame for initiating EEO Counselor contact. Although the alleged discriminatory incidents occurred with regard to issue (1) on December 23, 2009, and with regard to issue (2) beginning in September 2009, we find Complainant did not initiate EEO Counselor contact until August 10, 2010. While the record reveals that Complainant did contact the EEO Program Manager in February 2010, we find no evidence she exhibited an intent at that time to initiate the EEO complaint process regarding issues (1) and (2). In addition, we note that with regard to issue (2), Complainant stated that she contacted the EEOC Birmingham Office in December 2009 and January 2010, with regard to her claims that she was denied a reasonable accommodation. However, Complainant provided no evidence concerning this alleged contact. Moreover, we note that as of January 2010, Complainant had another EEO matter in the informal counseling process; however, there is no indication that she raised the present issues in that other complaint. Finally, we note that on appeal, Complainant acknowledges that she was late in filing; however, she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly in December 2009. There is no evidence in the record that shows that the time limit should be tolled over seven months due to the death of Complainant's brother. We note that Complainant claims she was attempting to pursue her claims in January and February 2010, which further undercuts her claim of incapacitation. She also states that she broke out in the shingles and started suffering from PTSD. There is no documentation in the record supporting Complainant's argument that PTSD caused her to miss the time limit for contacting an EEO Counselor. Upon review, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We have consistently held in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992). We find Complainant has not presented persuasive evidence that she was so incapacitated by her condition that she was unable to meet the regulatory time limits. 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). Upon review, the Commission finds that issue (3) was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. It appears Complainant is challenging statements made during settlement negotiations. The Commission has held settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, Complainant cannot bring a new complaint regarding statements made during mediation. Moreover, to the extent issue (3) does not concern settlement negotiations, we find this issue was properly dismissed for failure to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Final Decision: Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.	Wilma Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120111935 Agency No. 2003-0586-2010104568 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated January 19, 2011, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Clerk at the Agency's G.V. Sonny Montgomery Medical Center in Jackson, Mississippi. Complainant filed a formal complaint dated December 10, 2010, alleging that the Agency subjected her to discrimination on the basis of disability when: 1. On December 23, 2009, Complainant's request for an equitable position was denied. 2. On April 2, 2010, Complainant's supervisor (S1) denied her a reasonable accommodation. 3. On November 4, 2010, during mediation, the job criteria for a position was changed which caused the Agency not to settle the complaint. The Agency dismissed issues (1) and (2), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant did not initiate contact with an EEO Counselor until August 24, 2010, which was beyond the applicable limitations period. The Agency noted Complainant was aware or should have been aware of the applicable time limits for contacting an EEO Counselor. Additionally, the Agency dismissed issue (3), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted that participation in mediation and settlement of a complaint is strictly voluntary and confidential. The Agency noted that settlement of a complaint is not guaranteed. The Agency determined that comments made during mediation that cause an Agency not to settle the complaint, cannot give rise to an EEO complaint. On appeal, Complainant provides a detailed account of her employment history with the Agency. Complainant acknowledges that she signed her paperwork late, but she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly. She also states that she broke out in the shingles and started suffering from Post Traumatic Stress Disorder (PTSD). ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the agency extends the time limits in accordance with § 1614.604(c). 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. The record reveals that Complainant attended EEO related training when she attended the New Employee Training Orientation on July 15, 2009, Prevention of Sexual Harassment training on July 15, 2009, No Fear Act training on July 15, 2009, ADR Mediation training on July 15, 2009, and EEO training on July 15, 2009. The record reveals that these courses discussed the EEO complaint process, including the requirement to contact an EEO Counselor within the applicable 45-day time frame. With regard to issue (1), the record discloses that the alleged discriminatory event occurred on December 23, 2009. With regard to issue (2), the record reveals that on July 31, 2009, Complainant requested that Dragon Naturally Speaking (DNS) Equipment be installed on her computer as a reasonable accommodation for her claimed disability. The record reveals that on September 4, 2009, the Agency installed DNS on Complainant's computer in the back of the unit. Complainant stated that she felt the Agency did not provide her a reasonable accommodation because the Agency did not provide DNS on the reception area computers which she states she also had to use. The record reveals that Complainant submitted a resignation letter to the Agency on March 16, 2010, with an effective date of resignation on April 4, 2010. Although Complainant listed April 4, 2010, as the date she was denied accommodation, we note that the denial of accommodation was an ongoing issue for Complainant from September 2009, through her last day of employment with the Agency on April 4, 2010. Complainant alleged that she contacted the EEOC Office in Birmingham, Alabama during the last week of December 2009 and again in January 2010, regarding her denial of accommodation claim. Complainant stated that she received a letter from the EEOC in January 2010, advising her to contact the Agency in reference to her denial of accommodation claim. The record does not contain a copy of any letter from the EEOC. The record reveals that on January 21, 2010, Complainant requested EEO counseling regarding a claim that she was subjected to harassment based on her disability beginning on January 11, 2010 (Agency No. 2003-0586-2010101425). There is no indication that Complainant raised issues (1), (2), or (3) with an EEO Counselor during the processing of Agency No. 2003-0586-2010101425. Nor does Complainant contend on appeal that she raised the issues in the present complaint during the processing of her prior complaint. Complainant contends that in February 2010, she contacted the EEO Program Manager regarding her concerns of discrimination. The record contains a Report of Contact from the EEO Case Manager. The EEO Case Manager stated he spoke with the EEO Program Manager and that the EEO Program Manager remembered meeting with Complainant. The EEO Program Manager stated the conversation concerned an adverse relationship between Complainant and a co-worker. The EEO Program Manager stated that when an employee contacts him concerning an EEO complaint, he advises them that he is not an Office of Resolution Management (ORM) EEO Counselor and provides the individual an explanation of the complaint process. The EEO Program Manager stated he also advises them that ORM's Central Plains Operations has jurisdiction for processing EEO complaints for the Medical Center. The EEO Program Manager stated he also provides each individual a pamphlet outlining the complaint process which advises that "If you feel that you have been discriminated against and wish to file an EEO complaint, you must contact an ORM counselor within 45 calendar days of the alleged incident." Upon review, we find Complainant had knowledge of the applicable time frame for initiating EEO Counselor contact. Although the alleged discriminatory incidents occurred with regard to issue (1) on December 23, 2009, and with regard to issue (2) beginning in September 2009, we find Complainant did not initiate EEO Counselor contact until August 10, 2010. While the record reveals that Complainant did contact the EEO Program Manager in February 2010, we find no evidence she exhibited an intent at that time to initiate the EEO complaint process regarding issues (1) and (2). In addition, we note that with regard to issue (2), Complainant stated that she contacted the EEOC Birmingham Office in December 2009 and January 2010, with regard to her claims that she was denied a reasonable accommodation. However, Complainant provided no evidence concerning this alleged contact. Moreover, we note that as of January 2010, Complainant had another EEO matter in the informal counseling process; however, there is no indication that she raised the present issues in that other complaint. Finally, we note that on appeal, Complainant acknowledges that she was late in filing; however, she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly in December 2009. There is no evidence in the record that shows that the time limit should be tolled over seven months due to the death of Complainant's brother. We note that Complainant claims she was attempting to pursue her claims in January and February 2010, which further undercuts her claim of incapacitation. She also states that she broke out in the shingles and started suffering from PTSD. There is no documentation in the record supporting Complainant's argument that PTSD caused her to miss the time limit for contacting an EEO Counselor. Upon review, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We have consistently held in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992). We find Complainant has not presented persuasive evidence that she was so incapacitated by her condition that she was unable to meet the regulatory time limits. 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). Upon review, the Commission finds that issue (3) was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. It appears Complainant is challenging statements made during settlement negotiations. The Commission has held settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, Complainant cannot bring a new complaint regarding statements made during mediation. Moreover, to the extent issue (3) does not concern settlement negotiations, we find this issue was properly dismissed for failure to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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 (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 September 26, 2012 __________________ Date 01-2011-1935	[ "Davis v. U.S. Postal Service, EEOC Request No. 05980475 (Aug. 6, 1998)", "Crear v. U.S. Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992)", "Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", ...	[ -0.06897807121276855, 0.07134225219488144, 0.006520173046737909, 0.03152991831302643, -0.005638847127556801, 0.04583587870001793, 0.02546333149075508, 0.024582836776971817, -0.00014236550487112254, 0.06526074558496475, -0.0014786857645958662, 0.0071332985535264015, -0.017675522714853287, 0...
28	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/120101361.r.txt	120101361.r.txt	TXT	text/plain	12,968	Robert A. Smetana, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.	January 13, 2010	Appeal Number: 0120101361 Background: On September 8, 2009, complainant contacted an EEO Counselor when he was not selected for the position of Supervisory Internal Revenue Agent/Global Team Manager, IR-0512-3, advertised under Vacancy Announcement Number (VA No.) 60-63-LMM90397. Complainant was one of four managers, with purportedly over twenty years of managerial experience and several years of Large Case experience, who made the Best Qualified list but was not ultimately selected. When an African-American woman, with allegedly only two to three years of experience and no experience with Global or Large Cases, was chosen to fill the vacancy, Complainant suspected his non-selection was due to his race and sex. Informal efforts to resolve complainant's concerns were unsuccessful. Subsequently, on November 5, 2009, Complainant filed a formal complaint. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The agency found that the non-selection occurred on May 29, 2009, thereby making complainant's September 8, 2009 contact beyond the forty-five day time limitation. According to the agency, when asked why he delayed contacting the EEO office, Complainant stated that after he learned of the non-selection, he met with the three other white males who also were not selected for the vacancy. On or about June 10, 2009, they agreed that their non-selections may have been discriminatory and one of the individuals (Employee A) contacted the EEO office to determine whether they could pursue the matter through the EEO process. Employee A spoke with an EEO Counselor and purportedly was told that because they were white males they were not part of a protected class, except for age. Because the selectee was also over the age of 50, the EEO Counselor purportedly explained, they could not bring an age case. Thereafter, the group contacted an attorney, and on August 21, 2009, they were advised that they could use the EEO process and should contact an EEO Counselor. The attorney assisted Complainant in preparing an affidavit, addressing the reason for his untimely contact and requesting an extension of the forty-five day time limit. In addition to Complainant's affidavit, the agency considered a declaration by the EEO Counselor. According to the EEO Counselor, Employee A only raised the basis of age and did not specifically name the three other managers. She advised Employee A that the other individuals needed to contact the EEO office. Further, the EEO Counselor stated that she confirmed that the selectee was also over the age of forty, and explained to Employee A that he would have to show how the selection Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND On September 8, 2009, complainant contacted an EEO Counselor when he was not selected for the position of Supervisory Internal Revenue Agent/Global Team Manager, IR-0512-3, advertised under Vacancy Announcement Number (VA No.) 60-63-LMM90397. Complainant was one of four managers, with purportedly over twenty years of managerial experience and several years of Large Case experience, who made the Best Qualified list but was not ultimately selected. When an African-American woman, with allegedly only two to three years of experience and no experience with Global or Large Cases, was chosen to fill the vacancy, Complainant suspected his non-selection was due to his race and sex. Informal efforts to resolve complainant's concerns were unsuccessful. Subsequently, on November 5, 2009, Complainant filed a formal complaint. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The agency found that the non-selection occurred on May 29, 2009, thereby making complainant's September 8, 2009 contact beyond the forty-five day time limitation. According to the agency, when asked why he delayed contacting the EEO office, Complainant stated that after he learned of the non-selection, he met with the three other white males who also were not selected for the vacancy. On or about June 10, 2009, they agreed that their non-selections may have been discriminatory and one of the individuals (Employee A) contacted the EEO office to determine whether they could pursue the matter through the EEO process. Employee A spoke with an EEO Counselor and purportedly was told that because they were white males they were not part of a protected class, except for age. Because the selectee was also over the age of 50, the EEO Counselor purportedly explained, they could not bring an age case. Thereafter, the group contacted an attorney, and on August 21, 2009, they were advised that they could use the EEO process and should contact an EEO Counselor. The attorney assisted Complainant in preparing an affidavit, addressing the reason for his untimely contact and requesting an extension of the forty-five day time limit. In addition to Complainant's affidavit, the agency considered a declaration by the EEO Counselor. According to the EEO Counselor, Employee A only raised the basis of age and did not specifically name the three other managers. She advised Employee A that the other individuals needed to contact the EEO office. Further, the EEO Counselor stated that she confirmed that the selectee was also over the age of forty, and explained to Employee A that he would have to show how the selection decision was based on age. The EEO Counselor denied informing anyone that white males are not protected under the EEO laws. Moreover, she noted that she would not have described ADEA coverage as protecting individuals age fifty and older, but rather those age forty and over. The Agency concluded that it was "more likely that [Employee A] misunderstood what [the Counselor] stated and then passed the incorrect information to the other individuals." The Agency determined that because it was Employee A and not the Agency who provided Complainant the misinformation upon which he relied upon to his detriment, the agency is not estopped from dismissing Complainant's complaint pursuant on the grounds of untimely EEO contact. CONTENTIONS ON APPEAL On appeal, Complainant argues that the time limit for contacting an EEO Counselor should be extended because he was erroneously told by the local EEO office that he did not have a basis for a complaint. Complainant contends that "once we learned from our outside counsel that we indeed did have the right to file a complaint with out EEO office, we took immediate action . . . ." He disputes the EEO Counselor's version of events, and argues that credibility determinations are being inappropriately made. Complainant asserts that Employee A was not interviewed, and he has not had an opportunity to review the EEO Counselor's affidavit. In response, the Agency reiterates the reasoning set forth in its decision. The Agency states that the circumstances surrounding Complainant's contact did not warrant an extension of the time limit. The Agency found the EEO Counselor's declaration and intake report to be "a more accurate depiction" of the July 1, 2009 exchange between Employee A and the counselor. The Agency notes that the Counselor description of the call on the Contact Intake Form was made the next day, while Complainant's recollection of his conversation with Employee A was made months later. Additionally, the Agency challenges any assertions by complainant that Employee A was acting as his representative. The complainant did not notify the agency that Employee A was his representative, nor did Employee A mention Complainant's name during his conversation with the EEO Counselor. The Agency states that Employee A's contact cannot be imputed to Complainant's complaint. The Agency argues that Complainant's reliance on a co-worker's misinformation does not make it responsible for Complainant's untimely contact. 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. 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 this case, Complainant contends that he was indirectly misinformed by the EEO Counselor that as a white male, he could not use the EEO process to pursue his allegedly discriminatory non-selection. According to Complainant, this is why his EEO Counselor contact was beyond the forty-five day time limit. An 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 the complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Department 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). However, in this case, the Commission does not find that Complainant was misinformed by the Agency. Complainant does not dispute that he did not contact the EEO Counselor until September 8, 2009, nor is he alleging that he personally was misinformed by the EEO office. We do not find that Complainant's reliance on what another employee told him about the EEO process is sufficient to establish that the agency misled him. Final Decision: Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED.	Robert A. Smetana, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency. Appeal No. 0120101361 Agency No. IRS090949F DECISION Complainant filed a timely appeal with this Commission from an Agency's final decision, dated January 13, 2010, 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND On September 8, 2009, complainant contacted an EEO Counselor when he was not selected for the position of Supervisory Internal Revenue Agent/Global Team Manager, IR-0512-3, advertised under Vacancy Announcement Number (VA No.) 60-63-LMM90397. Complainant was one of four managers, with purportedly over twenty years of managerial experience and several years of Large Case experience, who made the Best Qualified list but was not ultimately selected. When an African-American woman, with allegedly only two to three years of experience and no experience with Global or Large Cases, was chosen to fill the vacancy, Complainant suspected his non-selection was due to his race and sex. Informal efforts to resolve complainant's concerns were unsuccessful. Subsequently, on November 5, 2009, Complainant filed a formal complaint. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The agency found that the non-selection occurred on May 29, 2009, thereby making complainant's September 8, 2009 contact beyond the forty-five day time limitation. According to the agency, when asked why he delayed contacting the EEO office, Complainant stated that after he learned of the non-selection, he met with the three other white males who also were not selected for the vacancy. On or about June 10, 2009, they agreed that their non-selections may have been discriminatory and one of the individuals (Employee A) contacted the EEO office to determine whether they could pursue the matter through the EEO process. Employee A spoke with an EEO Counselor and purportedly was told that because they were white males they were not part of a protected class, except for age. Because the selectee was also over the age of 50, the EEO Counselor purportedly explained, they could not bring an age case. Thereafter, the group contacted an attorney, and on August 21, 2009, they were advised that they could use the EEO process and should contact an EEO Counselor. The attorney assisted Complainant in preparing an affidavit, addressing the reason for his untimely contact and requesting an extension of the forty-five day time limit. In addition to Complainant's affidavit, the agency considered a declaration by the EEO Counselor. According to the EEO Counselor, Employee A only raised the basis of age and did not specifically name the three other managers. She advised Employee A that the other individuals needed to contact the EEO office. Further, the EEO Counselor stated that she confirmed that the selectee was also over the age of forty, and explained to Employee A that he would have to show how the selection decision was based on age. The EEO Counselor denied informing anyone that white males are not protected under the EEO laws. Moreover, she noted that she would not have described ADEA coverage as protecting individuals age fifty and older, but rather those age forty and over. The Agency concluded that it was "more likely that [Employee A] misunderstood what [the Counselor] stated and then passed the incorrect information to the other individuals." The Agency determined that because it was Employee A and not the Agency who provided Complainant the misinformation upon which he relied upon to his detriment, the agency is not estopped from dismissing Complainant's complaint pursuant on the grounds of untimely EEO contact. CONTENTIONS ON APPEAL On appeal, Complainant argues that the time limit for contacting an EEO Counselor should be extended because he was erroneously told by the local EEO office that he did not have a basis for a complaint. Complainant contends that "once we learned from our outside counsel that we indeed did have the right to file a complaint with out EEO office, we took immediate action . . . ." He disputes the EEO Counselor's version of events, and argues that credibility determinations are being inappropriately made. Complainant asserts that Employee A was not interviewed, and he has not had an opportunity to review the EEO Counselor's affidavit. In response, the Agency reiterates the reasoning set forth in its decision. The Agency states that the circumstances surrounding Complainant's contact did not warrant an extension of the time limit. The Agency found the EEO Counselor's declaration and intake report to be "a more accurate depiction" of the July 1, 2009 exchange between Employee A and the counselor. The Agency notes that the Counselor description of the call on the Contact Intake Form was made the next day, while Complainant's recollection of his conversation with Employee A was made months later. Additionally, the Agency challenges any assertions by complainant that Employee A was acting as his representative. The complainant did not notify the agency that Employee A was his representative, nor did Employee A mention Complainant's name during his conversation with the EEO Counselor. The Agency states that Employee A's contact cannot be imputed to Complainant's complaint. The Agency argues that Complainant's reliance on a co-worker's misinformation does not make it responsible for Complainant's untimely contact. 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. 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 this case, Complainant contends that he was indirectly misinformed by the EEO Counselor that as a white male, he could not use the EEO process to pursue his allegedly discriminatory non-selection. According to Complainant, this is why his EEO Counselor contact was beyond the forty-five day time limit. An 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 the complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Department 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). However, in this case, the Commission does not find that Complainant was misinformed by the Agency. Complainant does not dispute that he did not contact the EEO Counselor until September 8, 2009, nor is he alleging that he personally was misinformed by the EEO office. We do not find that Complainant's reliance on what another employee told him about the EEO process is sufficient to establish that the agency misled him. CONCLUSION Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. 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. 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). 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 July 21, 2010 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (Mar. 26, 1996)", "Elijah v. Department of the Army, EEOC Request No. 05950632 (Mar. 29, 1996)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.405", "29 C...	[ -0.0554950013756752, 0.07364746183156967, -0.06664501875638962, 0.026345722377300262, 0.03509744629263878, 0.03604001924395561, 0.032299354672431946, -0.0007742610760033131, 0.001753746415488422, 0.0626094788312912, 0.021685035899281502, -0.05499058589339256, -0.037809137254953384, -0.0159...
29	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120182188.txt	0120182188.txt	TXT	text/plain	13,828	Zachery V,1 Complainant, v. Jeff T. H. Pon, Director, Office of Personnel Management, Agency.	April 30, 2018	Appeal Number: 0120182188 Background: During the period at issue, Complainant applied for various positions with the Agency from September 2017 through November 2017. On January 31, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 1, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, age, and reprisal (for contacting his Senator) when: on or about November 1, 2017,2 Complainant was informed that he was not eligible for the Agency positions for which he applied. On April 30, 2018, the Agency issued the instant final decision, the Agency dismissed 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's initial EEO Counselor contact was on January 31, 2018, which it found to be beyond the 45-day limitation period. The instant appeal followed. Complainant, on appeal, argues that he could not find any information on the Agency's website regarding how to contact the Agency's EEO Counselor. Complainant further argues that he was not sure if he was subjected to the 45-day timeframe because he had retired from another federal agency on January 15, 2018 and was not a federal employee when he initiated EEO Counselor contact on January 31, 2018. Complainant acknowledges that during his tenure at the other federal agency, he attended an EEO briefing. However, he asserts that he does not remember any discussion of EEO time-limits requirements, and he does not remember seeing any information posted at the other federal agency regarding EEO requirements. Complainant further explains that he initiated EEO Counselor's contact on January 31, 2018 only after he had conducted personal research and contacted his Senator. 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. 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 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. 29 C.F.R. § 1614.105(a)(2). Where timeliness is an issue, the agency bears the burden of proof of obtaining sufficient information to support a reasoned determination as to whether that time limit was met. 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)). In this case, the Agency dismissed the instant formal complaint for untimely EEO Counselor contact. The Agency found, in pertinent part, that it was not required to extend the 45-day time limit to contact an EEO Counselor because (1) Complainant was a recent federal employee and Complainant's prior federal agency would have provided notice and training to Complainant on EEO Counselor contact requirements; (2) the Agency's job vacancy announcements provided links to the Agency's EEO office and to the Commission's "Federal Employee & Job Applicant's" page outlining the EEO Counselor contact requirements. Here, the alleged discriminatory event occurred on or about November 1, 2017 or November 16, 2017, but Complainant did not initiate contact with an EEO Counselor until January 31, 2018, well beyond the limitation period. Upon review, however, we find that the Agency has not met its burden to demonstrate that Complainant had knowledge of the 45-day timeframe to initiate EEO Counselor contact. First, we find that constructive knowledge of the 45-day limitation period was not established by the Agency, through its mere assumption that Complainant had prior knowledge of the EEO requirements because Complainant was a former federal government employee. The Agency has not provided any evidence to support this assertion. Second, it is not sufficient for the Agency to determine that Complainant had constructive knowledge of the EEO requirements from the EEO website links provided on the Agency's job vacancy announcements. We note that the EEO website links provide information regarding the EEO requirements. However, there is no actual mention of the EEO Counselor contact requirements on the face of the job vacancy announcements themselves. Moreover, there is no indication on the job vacancy announcements that the EEO links contain information pertaining to the EEO Counselor contact requirements. In sum, the Agency has failed to demonstrate that Complainant was notified and was otherwise aware of the 45-day requirement to initiate EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2); see also 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's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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.	Zachery V,1 Complainant, v. Jeff T. H. Pon, Director, Office of Personnel Management, Agency. Appeal No. 0120182188 Agency No. 2018024 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 30, 2018, 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. BACKGROUND During the period at issue, Complainant applied for various positions with the Agency from September 2017 through November 2017. On January 31, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 1, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, age, and reprisal (for contacting his Senator) when: on or about November 1, 2017,2 Complainant was informed that he was not eligible for the Agency positions for which he applied. On April 30, 2018, the Agency issued the instant final decision, the Agency dismissed 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's initial EEO Counselor contact was on January 31, 2018, which it found to be beyond the 45-day limitation period. The instant appeal followed. Complainant, on appeal, argues that he could not find any information on the Agency's website regarding how to contact the Agency's EEO Counselor. Complainant further argues that he was not sure if he was subjected to the 45-day timeframe because he had retired from another federal agency on January 15, 2018 and was not a federal employee when he initiated EEO Counselor contact on January 31, 2018. Complainant acknowledges that during his tenure at the other federal agency, he attended an EEO briefing. However, he asserts that he does not remember any discussion of EEO time-limits requirements, and he does not remember seeing any information posted at the other federal agency regarding EEO requirements. Complainant further explains that he initiated EEO Counselor's contact on January 31, 2018 only after he had conducted personal research and contacted his Senator. 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. 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 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. 29 C.F.R. § 1614.105(a)(2). Where timeliness is an issue, the agency bears the burden of proof of obtaining sufficient information to support a reasoned determination as to whether that time limit was met. 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)). In this case, the Agency dismissed the instant formal complaint for untimely EEO Counselor contact. The Agency found, in pertinent part, that it was not required to extend the 45-day time limit to contact an EEO Counselor because (1) Complainant was a recent federal employee and Complainant's prior federal agency would have provided notice and training to Complainant on EEO Counselor contact requirements; (2) the Agency's job vacancy announcements provided links to the Agency's EEO office and to the Commission's "Federal Employee & Job Applicant's" page outlining the EEO Counselor contact requirements. Here, the alleged discriminatory event occurred on or about November 1, 2017 or November 16, 2017, but Complainant did not initiate contact with an EEO Counselor until January 31, 2018, well beyond the limitation period. Upon review, however, we find that the Agency has not met its burden to demonstrate that Complainant had knowledge of the 45-day timeframe to initiate EEO Counselor contact. First, we find that constructive knowledge of the 45-day limitation period was not established by the Agency, through its mere assumption that Complainant had prior knowledge of the EEO requirements because Complainant was a former federal government employee. The Agency has not provided any evidence to support this assertion. Second, it is not sufficient for the Agency to determine that Complainant had constructive knowledge of the EEO requirements from the EEO website links provided on the Agency's job vacancy announcements. We note that the EEO website links provide information regarding the EEO requirements. However, there is no actual mention of the EEO Counselor contact requirements on the face of the job vacancy announcements themselves. Moreover, there is no indication on the job vacancy announcements that the EEO links contain information pertaining to the EEO Counselor contact requirements. In sum, the Agency has failed to demonstrate that Complainant was notified and was otherwise aware of the 45-day requirement to initiate EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2); see also 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's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 September 12, 2018 __________________ Date 2 The EEO Counselor's report indicates that the alleged discriminatory act occurred on November 16, 2017. ------------------------------------------------------------ ------------------------------------------------------------	[ "Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)", "Guy v. Dep't. of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)", "Williams v. Dep't. of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.108", "29 C.F...	[ -0.09535109251737595, 0.09123209118843079, -0.00896403193473816, -0.00691125588491559, 0.03684168681502342, 0.010959944687783718, 0.04551805928349495, -0.014428381808102131, -0.02601475454866886, 0.029709387570619583, 0.029089609161019325, -0.023094013333320618, -0.014463177882134914, 0.01...
30	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53803.txt	01a53803.txt	TXT	text/plain	14,711	Dianna Shannon v. United States Postal Service 01A53803 September 8, 2005 . Dianna Shannon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	September 8, 2005	Appeal Number: 01A53803 Complaint Allegations: In her complaint, complainant alleged that she was subjected to discrimination on the bases of disability (neuromuscular disease) and age (51) when: On November 16, 2004, complainant was asked to resign due to medical reasons. On December 13, 2004, after never completing a resignation form, complainant was provided a statement indicating that she was no longer employed with the agency. Case Facts: Complainant filed a timely appeal with this Commission from the agency's April 1, 2005 final decision 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 on the bases of disability (neuromuscular disease) and age (51) when: On November 16, 2004, complainant was asked to resign due to medical reasons. On December 13, 2004, after never completing a resignation form, complainant was provided a statement indicating that she was no longer employed with the agency. The agency dismissed claims (1) and (2) pursuant to Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency concluded that the alleged discriminatory acts occurred on November 16, 2004 and December13, 2004. However, the agency found that complainant did not contact an EEO Counselor until February 14, 2005, which exceeds the requisite 45-day time limit. On appeal, complainant argues that she contacted the agency Ombudsman on January 7, 2005, via electronic mail and was advised to contact the agency EEO office or Dispute Resolution Board. On January 10, 2005, via electronic mail complainant advised the Ombudsman that she was hitting a dead-end in her search for the person to whom she could report her discrimination complaint. Complainant also indicated that she went to the agency website which stated that the local EEO office must be contacted to file an EEO complaint and that no EEO complaints may be filed through the site. The Ombudsman indicated that complainant should look around the facility for an EEO poster, and stated she could check with her union officials or the personnel office, who should know where she could go to file her EEO complaint. On February 4, 2005, complainant sought legal advise and was advised to contact the agency's Fort Worth office to obtain the necessary forms to file her complaint. On appeal, the agency states that complainant received Employee Orientation on May 3, 2004. which it claims included a segment on filing an EEO complainant. In addition, the agency submitted a document that was signed by the Postmaster indicating that EEO Poster 72 was posted on the North wall in view for all employees. The agency did not include a copy of the EEO poster nor the EEO material used during the Employee Orientation. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires complaints of discrimination to be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the claimed discriminatory matter, or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission's regulations, however, provide that the time limit will be extended when the complainant 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. See 29 C.F.R. § 1614.105(a)(2). In the case at bar, we find that the agency improperly dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). We find that there is not sufficient evidence in the record showing complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency failed to meet its burden when it failed to provide a copy of the EEO poster on display at complainant's workstation or the EEO material that was presented during the Employee Orientation. We are unable to determine whether the EEO Poster displayed at the workplace or the EEO material presented during the Employee Orientation contained the time limit for contacting an EEO Counselor. We are remanding complainant's complaint for a supplemental investigation to permit a determination as to whether complainant should have been on constructive notice of her EEO rights based on the EEO Poster and EEO material provided during the Employee Orientation.	Dianna Shannon v. United States Postal Service 01A53803 September 8, 2005 . Dianna Shannon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A53803 Agency No. 4G-760-0080-05 DECISION Complainant filed a timely appeal with this Commission from the agency's April 1, 2005 final decision 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 on the bases of disability (neuromuscular disease) and age (51) when: On November 16, 2004, complainant was asked to resign due to medical reasons. On December 13, 2004, after never completing a resignation form, complainant was provided a statement indicating that she was no longer employed with the agency. The agency dismissed claims (1) and (2) pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency concluded that the alleged discriminatory acts occurred on November 16, 2004 and December13, 2004. However, the agency found that complainant did not contact an EEO Counselor until February 14, 2005, which exceeds the requisite 45-day time limit. On appeal, complainant argues that she contacted the agency Ombudsman on January 7, 2005, via electronic mail and was advised to contact the agency EEO office or Dispute Resolution Board. On January 10, 2005, via electronic mail complainant advised the Ombudsman that she was hitting a dead-end in her search for the person to whom she could report her discrimination complaint. Complainant also indicated that she went to the agency website which stated that the local EEO office must be contacted to file an EEO complaint and that no EEO complaints may be filed through the site. The Ombudsman indicated that complainant should look around the facility for an EEO poster, and stated she could check with her union officials or the personnel office, who should know where she could go to file her EEO complaint. On February 4, 2005, complainant sought legal advise and was advised to contact the agency's Fort Worth office to obtain the necessary forms to file her complaint. On appeal, the agency states that complainant received Employee Orientation on May 3, 2004. which it claims included a segment on filing an EEO complainant. In addition, the agency submitted a document that was signed by the Postmaster indicating that EEO Poster 72 was posted on the North wall in view for all employees. The agency did not include a copy of the EEO poster nor the EEO material used during the Employee Orientation. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires complaints of discrimination to be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the claimed discriminatory matter, or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission's regulations, however, provide that the time limit will be extended when the complainant 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. See 29 C.F.R. § 1614.105(a)(2). In the case at bar, we find that the agency improperly dismissed complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). We find that there is not sufficient evidence in the record showing complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency failed to meet its burden when it failed to provide a copy of the EEO poster on display at complainant's workstation or the EEO material that was presented during the Employee Orientation. We are unable to determine whether the EEO Poster displayed at the workplace or the EEO material presented during the Employee Orientation contained the time limit for contacting an EEO Counselor. We are remanding complainant's complaint for a supplemental investigation to permit a determination as to whether complainant should have been on constructive notice of her EEO rights based on the EEO Poster and EEO material provided during the Employee Orientation. Accordingly, the agency's decision dismissing complainant's complaint is VACATED and the complaint is REMANDED to the agency for further processing in accordance with the Order below. ORDER The agency is ORDERED to take the following action: The agency shall conduct a supplemental investigation on the issue of whether complainant had constructive or actual notice of the time limits for contacting an EEO Counselor. The agency shall supplement the record with affidavit(s) and/or copies of EEO posters showing that complainant was informed of the time limit for contacting an EEO Counselor during the relevant time frame. The agency shall also supplement the record with a copy of the EEO material that was reviewed during the Employee Orientation. After the agency determines whether complainant had actual or constructive notice of the time limit for contacting an EEO Counselor and whether she acted in a timely manner once she obtained actual or constructive knowledge, the agency shall, within 30 days after the date that this decision becomes final, issue a new final agency decision dismissing the complaint or notify complainant that her complaint is being processed. A copy of the new final agency decision or notice of processing 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"). 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 8, 2005 __________________ Date	[ "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.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" ]	[ -0.009674159809947014, 0.04356801137328148, 0.021208062767982483, 0.030923331156373024, -0.045724909752607346, 0.050709713250398636, 0.049547478556632996, -0.06927279382944107, -0.03161090612411499, 0.010882086120545864, 0.012423415668308735, 0.04455981031060219, -0.0317479707300663, 0.036...
31	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983894_r.txt	01983894_r.txt	TXT	text/plain	12,306		April 15, 1998	Appeal Number: 01983894 Case Facts: On April 15, 1998, appellant filed a timely appeal with this Commission from a March 17, 1998 final agency decision, dismissing her complaint for failure to contact an EEO Counselor in a timely manner. The agency framed the allegations of the complaint as whether appellant was discriminated against on the bases of sex (female), and in retaliation for prior EEO activity when: 1) she was placed on absence without leave (AWOL) for 13 hours covering four days, i.e., January 24, 25, 27, and 28, 1994; 2) she was issued a counseling memorandum from her supervisor, dated January 31, 1994, which criticized her conduct; 3) she received a performance evaluation dated August 16, 1993 rating her performance minimally successful; and 4) she was removed from her position as team leader on March 3, 1994.<1> In dismissing the allegations, the agency stated that appellant did not initiate Counselor contact until June 16, 1997. The agency also noted that although appellant indicated in her complaint that she contacted an EEO Counselor prior to 1997, appellant failed to pursue her complaint with due diligence and there was no evidence to indicate that circumstances beyond her control prevented her from timely contact.<2> On appeal, appellant asserts, through counsel, that she contacted an EEO Counselor on February 2, 1994, and that the counseling continued from that date to May 1994. Appellant further contends that because she never received a notice of final interview, she filed a formal complaint in March 1997. Appellant further indicates on appeal that she was informed by both EEO Counselors who had counseled her that they were retiring. EEO Counselor A told appellant that she was retiring in March 1994. Although EEO Counselor B was retiring in April 1994, appellant asserts that he assured her that he would continue to work on her complaint and give her status updates until his last day of employment. Appellant states that he failed to do so. Legal Analysis: 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. 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 that the agency's decision was proper. We find that appellant initiated EEO contact in 1994, with an intent to pursue 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). Although the agency stated on appeal that it had no records that appellant ever contacted an EEO Counselor or received any counseling in 1994, the agency's assertion is unsupported. The agency could have submitted the statement of an EEO official having custody and control of the relevant records to support its assertion. The Commission has consistently held that 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." Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, the record contains a June 5, 1997 letter from the Chief of the Office of Human Resources and EEO in which the Chief indicated that there were notes from appellant to the retired EEO Counselors. In addition, the record contains a March 14, 1994 Memo to the File written by appellant in which appellant noted that she spoke to EEO Counselor A on March 11, 1994, and a letter from appellant to Counselor B on April 12, 1994, in which she requested to file a formal complaint.<3> There is no evidence that the EEO office responded to appellant's letter. We, therefore, find that the Office was remiss in its responsibility to appellant. Nonetheless, we find that appellant abandoned her claim when she failed to pursue it. The cessation of EEO activity concerning her claim should have been a warning to appellant that the EEO process had terminated. Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995). The record reflects, and we find, that appellant was familiar with the EEO process, having filed at least one EEO complaint in 1993. Appellant also knew that the EEO Counselors were retiring and she had not heard from EEO Counselor B, despite his alleged promise to keep her advised regarding the progress of her claim. Under the present circumstances, waiting for close to three years without any inquiry from appellant to the EEO Office regarding the status of her April 1994 request to file a complaint signals an abandonment of the EEO process by appellant. Therefore, when appellant contacted the EEO office in 1997, her contact was untimely.<4> Appellant's inaction for almost three years demonstrates a lack of prudent regard on her part toward the exercise of her rights. The Commission has held that all complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Consistent with our discussion herein, the final agency decision is AFFIRMED.	Binnie Rai, ) Appellant, ) ) Appeal No. 01983894 v. ) Agency No. 97-24 ) James B. King, ) Director, ) Office of Personnel Management,) Agency. ) ) DECISION On April 15, 1998, appellant filed a timely appeal with this Commission from a March 17, 1998 final agency decision, dismissing her complaint for failure to contact an EEO Counselor in a timely manner. The agency framed the allegations of the complaint as whether appellant was discriminated against on the bases of sex (female), and in retaliation for prior EEO activity when: 1) she was placed on absence without leave (AWOL) for 13 hours covering four days, i.e., January 24, 25, 27, and 28, 1994; 2) she was issued a counseling memorandum from her supervisor, dated January 31, 1994, which criticized her conduct; 3) she received a performance evaluation dated August 16, 1993 rating her performance minimally successful; and 4) she was removed from her position as team leader on March 3, 1994.<1> In dismissing the allegations, the agency stated that appellant did not initiate Counselor contact until June 16, 1997. The agency also noted that although appellant indicated in her complaint that she contacted an EEO Counselor prior to 1997, appellant failed to pursue her complaint with due diligence and there was no evidence to indicate that circumstances beyond her control prevented her from timely contact.<2> On appeal, appellant asserts, through counsel, that she contacted an EEO Counselor on February 2, 1994, and that the counseling continued from that date to May 1994. Appellant further contends that because she never received a notice of final interview, she filed a formal complaint in March 1997. Appellant further indicates on appeal that she was informed by both EEO Counselors who had counseled her that they were retiring. EEO Counselor A told appellant that she was retiring in March 1994. Although EEO Counselor B was retiring in April 1994, appellant asserts that he assured her that he would continue to work on her complaint and give her status updates until his last day of employment. Appellant states that he failed to do so. 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. 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 that the agency's decision was proper. We find that appellant initiated EEO contact in 1994, with an intent to pursue 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). Although the agency stated on appeal that it had no records that appellant ever contacted an EEO Counselor or received any counseling in 1994, the agency's assertion is unsupported. The agency could have submitted the statement of an EEO official having custody and control of the relevant records to support its assertion. The Commission has consistently held that 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." Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, the record contains a June 5, 1997 letter from the Chief of the Office of Human Resources and EEO in which the Chief indicated that there were notes from appellant to the retired EEO Counselors. In addition, the record contains a March 14, 1994 Memo to the File written by appellant in which appellant noted that she spoke to EEO Counselor A on March 11, 1994, and a letter from appellant to Counselor B on April 12, 1994, in which she requested to file a formal complaint.<3> There is no evidence that the EEO office responded to appellant's letter. We, therefore, find that the Office was remiss in its responsibility to appellant. Nonetheless, we find that appellant abandoned her claim when she failed to pursue it. The cessation of EEO activity concerning her claim should have been a warning to appellant that the EEO process had terminated. Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995). The record reflects, and we find, that appellant was familiar with the EEO process, having filed at least one EEO complaint in 1993. Appellant also knew that the EEO Counselors were retiring and she had not heard from EEO Counselor B, despite his alleged promise to keep her advised regarding the progress of her claim. Under the present circumstances, waiting for close to three years without any inquiry from appellant to the EEO Office regarding the status of her April 1994 request to file a complaint signals an abandonment of the EEO process by appellant. Therefore, when appellant contacted the EEO office in 1997, her contact was untimely.<4> Appellant's inaction for almost three years demonstrates a lack of prudent regard on her part toward the exercise of her rights. The Commission has held that all complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Consistent with our discussion herein, the final agency decision 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. 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 1It appears that on March 31, 1994, appellant accepted a voluntary incentive package and retired from the agency. 2In a footnote in its final decision, the agency indicated that the allegation relating to the performance rating was the subject of a Memorandum of Agreement entered into on September 29, 1993, in which appellant agreed to withdraw her EEO complaint. 3The record contains a copy of a green card receipt addressed to EEO Counselor B which reflects delivery on April 15, 1994. Appellant indicated that the green card receipt was for the April 12, 1994 letter. 4Although the agency indicates that appellant did not contact an EEO Counselor until June 1997, the record reveals that by letter, dated March 26, 1997, appellant wrote to the agency's Chief of the Equal Employment Opportunity Division and attached a formal complaint of the same date. See Jones v. Department of the Army, EEOC Request No. 05900435 (September 7, 1990)(contact with an official "logically connected with the EEO process," is sufficient to constitute EEO contact).	[ "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)", "Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)", "Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995...	[ -0.03382774442434311, 0.04087264835834503, -0.02181297168135643, 0.028202880173921585, 0.08062209188938141, 0.04209589213132858, 0.061182256788015366, 0.058304063975811005, -0.03620307147502899, 0.08547241985797882, 0.024371415376663208, -0.008343660272657871, -0.046137936413288116, 0.0122...
32	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983894.txt	01983894.txt	TXT	text/plain	12,385		June 2, 1999	Appeal Number: 01983894 Case Facts: On April 15, 1998, appellant filed a timely appeal with this Commission from a March 17, 1998 final agency decision, dismissing her complaint for failure to contact an EEO Counselor in a timely manner. The agency framed the allegations of the complaint as whether appellant was discriminated against on the bases of sex (female), and in retaliation for prior EEO activity when: 1) she was placed on absence without leave (AWOL) for 13 hours covering four days, i.e., January 24, 25, 27, and 28, 1994; 2) she was issued a counseling memorandum from her supervisor, dated January 31, 1994, which criticized her conduct; 3) she received a performance evaluation dated August 16, 1993 rating her performance minimally successful; and 4) she was removed from her position as team leader on March 3, 1994.<1> In dismissing the allegations, the agency stated that appellant did not initiate Counselor contact until June 16, 1997. The agency also noted that although appellant indicated in her complaint that she contacted an EEO Counselor prior to 1997, appellant failed to pursue her complaint with due diligence and there was no evidence to indicate that circumstances beyond her control prevented her from timely contact.<2> On appeal, appellant asserts, through counsel, that she contacted an EEO Counselor on February 2, 1994, and that the counseling continued from that date to May 1994. Appellant further contends that because she never received a notice of final interview, she filed a formal complaint in March 1997. Appellant further indicates on appeal that she was informed by both EEO Counselors who had counseled her that they were retiring. EEO Counselor A told appellant that she was retiring in March 1994. Although EEO Counselor B was retiring in April 1994, appellant asserts that he assured her that he would continue to work on her complaint and give her status updates until his last day of employment. Appellant states that he failed to do so. Legal Analysis: 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. 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 that the agency's decision was proper. We find that appellant initiated EEO contact in 1994, with an intent to pursue 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). Although the agency stated on appeal that it had no records that appellant ever contacted an EEO Counselor or received any counseling in 1994, the agency's assertion is unsupported. The agency could have submitted the statement of an EEO official having custody and control of the relevant records to support its assertion. The Commission has consistently held that 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." Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, the record contains a June 5, 1997 letter from the Chief of the Office of Human Resources and EEO in which the Chief indicated that there were notes from appellant to the retired EEO Counselors. In addition, the record contains a March 14, 1994 Memo to the File written by appellant in which appellant noted that she spoke to EEO Counselor A on March 11, 1994, and a letter from appellant to Counselor B on April 12, 1994, in which she requested to file a formal complaint.<3> There is no evidence that the EEO office responded to appellant's letter. We, therefore, find that the Office was remiss in its responsibility to appellant. Nonetheless, we find that appellant abandoned her claim when she failed to pursue it. The cessation of EEO activity concerning her claim should have been a warning to appellant that the EEO process had terminated. Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995). The record reflects, and we find, that appellant was familiar with the EEO process, having filed at least one EEO complaint in 1993. Appellant also knew that the EEO Counselors were retiring and she had not heard from EEO Counselor B, despite his alleged promise to keep her advised regarding the progress of her claim. Under the present circumstances, waiting for close to three years without any inquiry from appellant to the EEO Office regarding the status of her April 1994 request to file a complaint signals an abandonment of the EEO process by appellant. Therefore, when appellant contacted the EEO office in 1997, her contact was untimely.<4> Appellant's inaction for almost three years demonstrates a lack of prudent regard on her part toward the exercise of her rights. The Commission has held that all complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Consistent with our discussion herein, the final agency decision is AFFIRMED.	Binnie Rai v. Office of Personnel Management 01983894 June 2, 1999 Binnie Rai, ) Appellant, ) ) Appeal No. 01983894 v. ) Agency No. 97-24 ) James B. King, ) Director, ) Office of Personnel Management,) Agency. ) ) DECISION On April 15, 1998, appellant filed a timely appeal with this Commission from a March 17, 1998 final agency decision, dismissing her complaint for failure to contact an EEO Counselor in a timely manner. The agency framed the allegations of the complaint as whether appellant was discriminated against on the bases of sex (female), and in retaliation for prior EEO activity when: 1) she was placed on absence without leave (AWOL) for 13 hours covering four days, i.e., January 24, 25, 27, and 28, 1994; 2) she was issued a counseling memorandum from her supervisor, dated January 31, 1994, which criticized her conduct; 3) she received a performance evaluation dated August 16, 1993 rating her performance minimally successful; and 4) she was removed from her position as team leader on March 3, 1994.<1> In dismissing the allegations, the agency stated that appellant did not initiate Counselor contact until June 16, 1997. The agency also noted that although appellant indicated in her complaint that she contacted an EEO Counselor prior to 1997, appellant failed to pursue her complaint with due diligence and there was no evidence to indicate that circumstances beyond her control prevented her from timely contact.<2> On appeal, appellant asserts, through counsel, that she contacted an EEO Counselor on February 2, 1994, and that the counseling continued from that date to May 1994. Appellant further contends that because she never received a notice of final interview, she filed a formal complaint in March 1997. Appellant further indicates on appeal that she was informed by both EEO Counselors who had counseled her that they were retiring. EEO Counselor A told appellant that she was retiring in March 1994. Although EEO Counselor B was retiring in April 1994, appellant asserts that he assured her that he would continue to work on her complaint and give her status updates until his last day of employment. Appellant states that he failed to do so. 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. 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 that the agency's decision was proper. We find that appellant initiated EEO contact in 1994, with an intent to pursue 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). Although the agency stated on appeal that it had no records that appellant ever contacted an EEO Counselor or received any counseling in 1994, the agency's assertion is unsupported. The agency could have submitted the statement of an EEO official having custody and control of the relevant records to support its assertion. The Commission has consistently held that 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." Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, the record contains a June 5, 1997 letter from the Chief of the Office of Human Resources and EEO in which the Chief indicated that there were notes from appellant to the retired EEO Counselors. In addition, the record contains a March 14, 1994 Memo to the File written by appellant in which appellant noted that she spoke to EEO Counselor A on March 11, 1994, and a letter from appellant to Counselor B on April 12, 1994, in which she requested to file a formal complaint.<3> There is no evidence that the EEO office responded to appellant's letter. We, therefore, find that the Office was remiss in its responsibility to appellant. Nonetheless, we find that appellant abandoned her claim when she failed to pursue it. The cessation of EEO activity concerning her claim should have been a warning to appellant that the EEO process had terminated. Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995). The record reflects, and we find, that appellant was familiar with the EEO process, having filed at least one EEO complaint in 1993. Appellant also knew that the EEO Counselors were retiring and she had not heard from EEO Counselor B, despite his alleged promise to keep her advised regarding the progress of her claim. Under the present circumstances, waiting for close to three years without any inquiry from appellant to the EEO Office regarding the status of her April 1994 request to file a complaint signals an abandonment of the EEO process by appellant. Therefore, when appellant contacted the EEO office in 1997, her contact was untimely.<4> Appellant's inaction for almost three years demonstrates a lack of prudent regard on her part toward the exercise of her rights. The Commission has held that all complainants must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Consistent with our discussion herein, the final agency decision 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. 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 1It appears that on March 31, 1994, appellant accepted a voluntary incentive package and retired from the agency. 2In a footnote in its final decision, the agency indicated that the allegation relating to the performance rating was the subject of a Memorandum of Agreement entered into on September 29, 1993, in which appellant agreed to withdraw her EEO complaint. 3The record contains a copy of a green card receipt addressed to EEO Counselor B which reflects delivery on April 15, 1994. Appellant indicated that the green card receipt was for the April 12, 1994 letter. 4Although the agency indicates that appellant did not contact an EEO Counselor until June 1997, the record reveals that by letter, dated March 26, 1997, appellant wrote to the agency's Chief of the Equal Employment Opportunity Division and attached a formal complaint of the same date. See Jones v. Department of the Army, EEOC Request No. 05900435 (September 7, 1990)(contact with an official "logically connected with the EEO process," is sufficient to constitute EEO contact).	[ "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)", "Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)", "Felton v. Department of the Navy, EEOC Request No. 01944826 (January 5, 1995...	[ -0.012633043341338634, 0.037167180329561234, -0.010487236082553864, 0.01859435997903347, 0.05019542947411537, 0.04887063801288605, 0.07267212122678757, 0.04965364187955856, -0.0425688698887825, 0.10593132674694061, 0.03057228773832321, 0.010004507377743721, -0.05094277858734131, 0.03111910...
33	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993830.r.txt	01993830.r.txt	TXT	text/plain	13,827		April 7, 1999	Appeal Number: 01993830 Complaint Allegations: In her complaint, complainant alleged that she was subjected to discrimination on the basis of race (African-American) when she was subjected to a hostile work environment from September 1996 through March 1998, in the form of verbal harassment from a co-worker and management's failure to address the conflict. Case Facts: On April 7, 1999, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by her on March 17, 1999, 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.<1> In her complaint, complainant alleged that she was subjected to discrimination on the basis of race (African-American) when she was subjected to a hostile work environment from September 1996 through March 1998, in the form of verbal harassment from a co-worker and management's failure to address the conflict. The agency dismissed the complaint for untimely counselor contact. Specifically, the agency found that complainant initially contacted an EEO Counselor regarding her harassment claim on September 30, 1998. The agency noted that it requested complainant to explain her untimeliness by letter dated January 25, 1999. In complainant's response, dated February 10, 1999, the agency found that complainant restated the claim, but did not address timeliness. Further, the agency noted that the January 25, 1998 request asked complainant to explain the difference between the present complaint and a prior complaint, Agency No. 98-3449, concerning harassment on overlapping dates. Since complainant responded that she was unsure what the present complaint concerns, the agency alternatively dismissed the claim for failure to state a claim. On appeal, complainant argues that she informed an EEO Counselor at her work site about the harassment, but he took no action. Complainant notes that shortly after the contact, she requested and received a transfer to a new duty station -- the Intensive Care Unit (ICU). She argues that once the EEO office moved off-site, she made contact concerning new issues. During the course of this contact, complainant asserts that she asked about the status of her harassment claim, and was informed that there was no record of the claims. Complainant also requests that the Commission consider my lack of experience with the EEO process. In response, the agency notes that the counselor with whom complainant claims to have conversed was the office EEO Manager. The agency disputes that complainant spoke with the EEO Manager concerning these claims, noting that the EEO Manager provided a signed statement denying any such contact. The agency also argues that complainant never raised her present harassment claims in the counseling of her prior complaint. Further, the agency surmises that complainant is arguing a lack of knowledge of applicable EEO time limits, and notes that the EEO Manager provided evidence that complainant was aware of the applicable time limits. In the EEO Manager's statement, signed June 2, 1999, he claims to have no recollection of any conversation with complainant regarding her claims of harassment. Further, the EEO Manager states that he does not actively counsel complainants, and routinely instructs them to contact an EEO Counselor if they raise such issues with him. The EEO Manager also stated that complainant was aware of the time limits through periodic memoranda concerning the EEO process, postings of EEO information on bulletin boards, and a training class concerning the EEO process that complainant attended on July 16, 1998. An attendance list from a July 16, 1998 training class entitled Office of Resolution Management - EEO training, and a pamphlet listing, inter alia, the time limitations for EEO Counselor contact, is attached to the EEO Manager's statement. The record also contains a copy of the complaint file for Agency No. 98-3445. The Counselor's Report, dated August 28, 1998, and the formal complaint, dated September 18, 1998, both refer to harassment at complainant's duty station in the ICU beginning in March 1998. The claims do not mention any incidents occurring at complainant's prior duty station. In an October 28, 1998 letter providing additional information for Agency No. 98-3445, complainant explains the harassment she suffered from the Chief ICU nurse. Complainant also notes that the phone number in the Office of Resolution Management pamphlet was not operating from May - June 1998, and she was unable to reach anyone until July 1998 (after obtaining an alternate phone number). The record for the present case, Agency No. 98-4188, includes two Report of Contact documents signed by the EEO Counselor for the present complaint. In the first report, dated September 17, 1998, the counselor notes that complainant called to check on the status of her harassment claim involving the co-worker. According to the report, complainant believed that she filed a complaint in late 1997 or early 1998 when she discussed the matter with the EEO Manager. The Counselor reportedly asked complainant if she wished to file a new complaint concerning the issue, and complainant responded that she wished to follow-up on the previously filed claim. In an additional notation on the September 17, 1998 report, the counselor notes that the EEO Manager only found a claim filed by the co-worker against complainant in 1996. The EEO Manager explained that pursuant to a settlement agreement in the 1996 complaint, complainant wrote a letter of apology to the co-worker on May 7, 1997, but that no record existed of a complaint filed by complainant against the co-worker. In the second report, dated September 24, 1998, the counselor spoke with complainant to clarify the circumstances of the present claim. In her formal complaint, dated October 28, 1998, complainant explained that after writing the letter of apology to the co-worker, complainant approached the EEO Manager and requested that he file a complaint on her behalf against management for its failure to take action when she complained of the co-worker's harassment. Legal Analysis: the Commission consider my lack of experience with the EEO process. In response, the agency notes that the counselor with whom complainant claims to have conversed was the office EEO Manager. The agency disputes that complainant spoke with the EEO Manager concerning these claims, noting that the EEO Manager provided a signed statement denying any such contact. The agency also argues that complainant never raised her present harassment claims in the counseling of her prior complaint. Further, the agency surmises that complainant is arguing a lack of knowledge of applicable EEO time limits, and notes that the EEO Manager provided evidence that complainant was aware of the applicable time limits. In the EEO Manager's statement, signed June 2, 1999, he claims to have no recollection of any conversation with complainant regarding her claims of harassment. Further, the EEO Manager states that he does not actively counsel complainants, and routinely instructs them to contact an EEO Counselor if they raise such issues with him. The EEO Manager also stated that complainant was aware of the time limits through periodic memoranda concerning the EEO process, postings of EEO information on bulletin boards, and a training class concerning the EEO process that complainant attended on July 16, 1998. An attendance list from a July 16, 1998 training class entitled Office of Resolution Management - EEO training, and a pamphlet listing, inter alia, the time limitations for EEO Counselor contact, is attached to the EEO Manager's statement. The record also contains a copy of the complaint file for Agency No. 98-3445. The Counselor's Report, dated August 28, 1998, and the formal complaint, dated September 18, 1998, both refer to harassment at complainant's duty station in the ICU beginning in March 1998. The claims do not mention any incidents occurring at complainant's prior duty station. In an October 28, 1998 letter providing additional information for Agency No. 98-3445, complainant explains the harassment she suffered from the Chief ICU nurse. Complainant also notes that the phone number in the Office of Resolution Management pamphlet was not operating from May - June 1998, and she was unable to reach anyone until July 1998 (after obtaining an alternate phone number). The record for the present case, Agency No. 98-4188, includes two Report of Contact documents signed by the EEO Counselor for the present complaint. In the first report, dated September 17, 1998, the counselor notes that complainant called to check on the status of her harassment claim involving the co-worker. According to the report, complainant believed that she filed a complaint in late 1997 or early 1998 when she discussed the matter with the EEO Manager. The Counselor reportedly asked complainant if she wished to file a new complaint concerning the issue, and complainant responded that she wished to follow-up on the previously filed claim. In an additional notation on the September 17, 1998 report, the counselor notes that the EEO Manager only found a claim filed by the co-worker against complainant in 1996. The EEO Manager explained that pursuant to a settlement agreement in the 1996 complaint, complainant wrote a letter of apology to the co-worker on May 7, 1997, but that no record existed of a complaint filed by complainant against the co-worker. In the second report, dated September 24, 1998, the counselor spoke with complainant to clarify the circumstances of the present claim. In her formal complaint, dated October 28, 1998, complainant explained that after writing the letter of apology to the co-worker, complainant approached the EEO Manager and requested that he file a complaint on her behalf against management for its failure to take action when she complained of the co-worker's harassment. 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 appears that complainant first raised her claim with a Counselor, and intended to pursue it, on September 17, 1998, not September 30, 1998. Nonetheless, this contact was more than forty-five days after the most recent incident alleged. The agency adequately rebutted complainant's repeated claims that she asked the EEO Manager to file a complaint on her behalf. Further, even if complainant intended to file a complaint by speaking with the EEO Manager in late 1997, she failed to diligently pursue her complaint when she failed to follow-up with her complaint for an entire year. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Regarding complainant's familiarity with EEO procedures, the Commission finds that complainant is no novice unaware of EEO complaint requirements, given her involvement with the co-worker's 1996 complaint, her own prior complaint (Agency No. 98-3446), the July 16, 1998 training class, and the pamphlet of EEO information she received. The Commission notes that complainant contacted a counselor regarding harassment from the ICU in July 1998, (Agency No. 98-3446) but failed to raise the present claims during that counseling. Therefore, the agency's dismissal for untimely counselor contact was proper.<2> Final Decision: Accordingly, the agency's dismissal is AFFIRMED.	Audrey M. Lewis, ) Complainant, ) ) v. ) Appeal No. 01993830 ) Agency No. 98-4188 Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs, ) Agency. ) ____________________________________) DECISION On April 7, 1999, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by her on March 17, 1999, 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.<1> In her complaint, complainant alleged that she was subjected to discrimination on the basis of race (African-American) when she was subjected to a hostile work environment from September 1996 through March 1998, in the form of verbal harassment from a co-worker and management's failure to address the conflict. The agency dismissed the complaint for untimely counselor contact. Specifically, the agency found that complainant initially contacted an EEO Counselor regarding her harassment claim on September 30, 1998. The agency noted that it requested complainant to explain her untimeliness by letter dated January 25, 1999. In complainant's response, dated February 10, 1999, the agency found that complainant restated the claim, but did not address timeliness. Further, the agency noted that the January 25, 1998 request asked complainant to explain the difference between the present complaint and a prior complaint, Agency No. 98-3449, concerning harassment on overlapping dates. Since complainant responded that she was unsure what the present complaint concerns, the agency alternatively dismissed the claim for failure to state a claim. On appeal, complainant argues that she informed an EEO Counselor at her work site about the harassment, but he took no action. Complainant notes that shortly after the contact, she requested and received a transfer to a new duty station -- the Intensive Care Unit (ICU). She argues that once the EEO office moved off-site, she made contact concerning new issues. During the course of this contact, complainant asserts that she asked about the status of her harassment claim, and was informed that there was no record of the claims. Complainant also requests that the Commission consider my lack of experience with the EEO process. In response, the agency notes that the counselor with whom complainant claims to have conversed was the office EEO Manager. The agency disputes that complainant spoke with the EEO Manager concerning these claims, noting that the EEO Manager provided a signed statement denying any such contact. The agency also argues that complainant never raised her present harassment claims in the counseling of her prior complaint. Further, the agency surmises that complainant is arguing a lack of knowledge of applicable EEO time limits, and notes that the EEO Manager provided evidence that complainant was aware of the applicable time limits. In the EEO Manager's statement, signed June 2, 1999, he claims to have no recollection of any conversation with complainant regarding her claims of harassment. Further, the EEO Manager states that he does not actively counsel complainants, and routinely instructs them to contact an EEO Counselor if they raise such issues with him. The EEO Manager also stated that complainant was aware of the time limits through periodic memoranda concerning the EEO process, postings of EEO information on bulletin boards, and a training class concerning the EEO process that complainant attended on July 16, 1998. An attendance list from a July 16, 1998 training class entitled Office of Resolution Management - EEO training, and a pamphlet listing, inter alia, the time limitations for EEO Counselor contact, is attached to the EEO Manager's statement. The record also contains a copy of the complaint file for Agency No. 98-3445. The Counselor's Report, dated August 28, 1998, and the formal complaint, dated September 18, 1998, both refer to harassment at complainant's duty station in the ICU beginning in March 1998. The claims do not mention any incidents occurring at complainant's prior duty station. In an October 28, 1998 letter providing additional information for Agency No. 98-3445, complainant explains the harassment she suffered from the Chief ICU nurse. Complainant also notes that the phone number in the Office of Resolution Management pamphlet was not operating from May - June 1998, and she was unable to reach anyone until July 1998 (after obtaining an alternate phone number). The record for the present case, Agency No. 98-4188, includes two Report of Contact documents signed by the EEO Counselor for the present complaint. In the first report, dated September 17, 1998, the counselor notes that complainant called to check on the status of her harassment claim involving the co-worker. According to the report, complainant believed that she filed a complaint in late 1997 or early 1998 when she discussed the matter with the EEO Manager. The Counselor reportedly asked complainant if she wished to file a new complaint concerning the issue, and complainant responded that she wished to follow-up on the previously filed claim. In an additional notation on the September 17, 1998 report, the counselor notes that the EEO Manager only found a claim filed by the co-worker against complainant in 1996. The EEO Manager explained that pursuant to a settlement agreement in the 1996 complaint, complainant wrote a letter of apology to the co-worker on May 7, 1997, but that no record existed of a complaint filed by complainant against the co-worker. In the second report, dated September 24, 1998, the counselor spoke with complainant to clarify the circumstances of the present claim. In her formal complaint, dated October 28, 1998, complainant explained that after writing the letter of apology to the co-worker, complainant approached the EEO Manager and requested that he file a complaint on her behalf against management for its failure to take action when she complained of the co-worker's harassment. 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 appears that complainant first raised her claim with a Counselor, and intended to pursue it, on September 17, 1998, not September 30, 1998. Nonetheless, this contact was more than forty-five days after the most recent incident alleged. The agency adequately rebutted complainant's repeated claims that she asked the EEO Manager to file a complaint on her behalf. Further, even if complainant intended to file a complaint by speaking with the EEO Manager in late 1997, she failed to diligently pursue her complaint when she failed to follow-up with her complaint for an entire year. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently cannot invoke equitable principles to excuse lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must have diligently pursued her claim"). Regarding complainant's familiarity with EEO procedures, the Commission finds that complainant is no novice unaware of EEO complaint requirements, given her involvement with the co-worker's 1996 complaint, her own prior complaint (Agency No. 98-3446), the July 16, 1998 training class, and the pamphlet of EEO information she received. The Commission notes that complainant contacted a counselor regarding harassment from the ICU in July 1998, (Agency No. 98-3446) but failed to raise the present claims during that counseling. Therefore, the agency's dismissal for untimely counselor contact was proper.<2> CONCLUSION Accordingly, the agency's dismissal is 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: March 15, 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 Assistant1On 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. 2Since we are affirming the agency's dismissal on the grounds of untimely counselor contact, we will not address the agency's alternative grounds for dismissal, i.e., failure to state a claim.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "466 U.S. 147", "886 F.2d 443", "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" ]	[ -0.10229203850030899, 0.07590966671705246, -0.06858768314123154, 0.044309817254543304, 0.018886171281337738, 0.06970325112342834, 0.04668297991156578, -0.00469326414167881, -0.02739165537059307, 0.025168294087052345, -0.02866949327290058, -0.04531628638505936, -0.04287712275981903, -0.0131...
34	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05980480_r.txt	05980480_r.txt	TXT	text/plain	16,954	Russell L. Moore v. U.S. Department of the Treasury 05980480 December 21, 2001 . Russell L. Moore, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.	December 21, 2001	Appeal Number: 01971900 Complaint Allegations: in his complaint, he did not at the time suspect that the unfairness was motivated by discriminatory animus because he had never received training on how to recognize discrimination in the workplace. Regarding the nine non-selections in particular, complainant claims that it was only after a number of years of non-selections, always in favor of younger candidates, that he suspected a discriminatory motive. Complainant additionally argued that he had never received any memoranda from the agency regarding the EEO process time limits, and that the bulletin boards did not contain information about the time frames in the EEO process. Complainant asserts that the managers at his facility routinely failed to provide EEO memoranda to employees, and that the last manager he worked for would not allow employees access to the file cabinet where these types of memoranda were maintained.<1> Complainant also questioned why the EEO Counselor did not inform him that there was a problem with untimely contact. In responding to complainant's appeal, the agency analyzed each of the incidents identified by complainant, and argued that given the circumstances of each incident, complainant should have reasonably suspected discrimination at the time the incident occurred. The agency averred that the seventeen-month period between complainant's EEO Counselor contact and the date of the most recent incident of discrimination could not be justified. Moreover, the agency additionally argued complainant should have been aware of the EEO time limits because this information was conspicuously displayed on EEO posters, and issued in numerous all-employee memoranda. As evidence, the agency submitted copies of affidavits from the individuals responsible for ensuring the posting of EEO procedures and disseminating information on EEO procedures, as well as a copy of an agency newsletter and five memoranda regarding the EEO process, all dated within the time frame in which the incidents occurred. In the previous decision, the Commission found that the agency properly dismissed the complaint on the grounds of untimely EEO Counselor contact, and affirmed the agency's decision. The Commission noted complainant's arguments on appeal. However, the Commission found that the agency submitted persuasive evidence to demonstrate that it had provided its employees with information on EEO time requirements. In reviewing this evidence, the Commission determined that while the copies of the memoranda submitted by the agency dealt largely with sexual harassment, numerous affidavits attested that information about EEO time limits were posted on bulletin boards at complainant's workplace. Moreover, in reviewing a document entitled Employee Guide for its Equal Employment Opportunity Program, the Commission found that it contained a section delineating employee rights and time limits of the agency.<2> In his request for reconsideration, complainant challenges the credibility of the affidavits submitted by the agency, noting that he identified some of the affiants as discriminating officials in his complaint. Furthermore, complainant argues that the agency failed to submit copies of the EEO posters which it purportedly displayed on bulletin boards to corroborate the affidavits. Complainant additionally argues that the Employee Guide referenced by the previous decision was only first provided to him along with the agency's final decision to dismiss his complaint. In analyzing this Employee Guide, complainant notes that the phrase Employee Guide had been typed on the cover page of the document, presumably in an effort to make it look as if it had been disseminated to all employees. However, complainant contends that he never received it as an employee at the agency, and does not believe that other employees received it, arguing that the agency failed to provide evidence of its distribution. Instead, complainant avers that the document is most likely a guide for use of staff in the EEO office. Complainant also argues that the agency failed to submit any evidence that it provided training on the EEO process, and that the evidence it submits on appeal does not demonstrate that it provided information to employees regarding EEO processing time requirements. The agency offers no response to complainant's request for reconsideration. The issue now presented before the Commission is whether the previous decision properly affirmed the agency's final decision dismissing the instant complaint for failure to initiate timely EEO Counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1). 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. After carefully reviewing the entire record before us, we conclude that the previous decision was based on an erroneous interpretation of material fact in its determination that the agency had submitted sufficient evidence to show that it had provided adequate notice to complainant of the EEO time requirement for contacting an EEO Counselor. 29 C.F.R. § 1614.405(b) Instead, contrary to our previous decision, we now find that the agency failed to provide sufficient evidence to demonstrate that complainant had either actual or constructive knowledge of the forty-five day time limitation for contacting an EEO Counselor. Review of the newsletter and memoranda submitted by the agency on appeal reveals that none of these documents contains the time limit for contacting an EEO Counselor. Moreover, as noted by complainant,	Russell L. Moore v. U.S. Department of the Treasury 05980480 December 21, 2001 . Russell L. Moore, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency. Request No. 05980480 Appeal No. 01971900 Agency No. 96-2319 DECISION ON REQUEST FOR RECONSIDERATION On March 13, 1998, complainant timely filed a request with the Equal Employment Opportunity Commission (the Commission) to reconsider the decision in Russell L. Moore v. U.S. Department of the Treasury, EEOC Appeal No. 01971900 (March 3, 1998). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following two criteria: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or, (2) the decision will have a substantial impact on the policies, practices or operations of the agency. Id. For the reasons set forth herein, complainant's request is GRANTED. Complainant contacted an EEO Counselor on June 17, 1996, regarding his concern that the agency discriminated against him regarding nine non-selections, denial of training, an unfair performance appraisal, failure to recognize an outstanding achievement, and non-selection for a reassignment to a certain position. On September 23, 1996, complainant filed a formal complaint claiming discrimination on the bases of sex and age regarding these incidents. The agency issued a final decision on December 4, 1996, dismissing the complaint on the grounds of untimely EEO Counselor contact. The agency found that the incidents raised by complainant spanned a time period from 1989 to 1995, and that none of the incidents fell within forty-five days of his initial EEO Counselor contact. The agency rejected complainant's argument that he was not aware that the incidents were motivated by discrimination until his EEO Counselor contact, finding instead that complainant should have reasonably suspected discrimination regarding each of the incidents at the time they occurred; and that because the incidents were unrelated, they did not constitute a continuing violation. The agency also rejected complainant's argument that he was unaware of the time limitation for contacting an EEO Counselor, because of his lengthy career as a federal employee, and the memoranda issued to him during the time the incidents occurred which set forth the EEO process and procedures. Complainant filed an appeal from this decision to the Commission on December 24, 1996. Complainant argued that while he knew management acted unfairly regarding the incidents in his complaint, he did not at the time suspect that the unfairness was motivated by discriminatory animus because he had never received training on how to recognize discrimination in the workplace. Regarding the nine non-selections in particular, complainant claims that it was only after a number of years of non-selections, always in favor of younger candidates, that he suspected a discriminatory motive. Complainant additionally argued that he had never received any memoranda from the agency regarding the EEO process time limits, and that the bulletin boards did not contain information about the time frames in the EEO process. Complainant asserts that the managers at his facility routinely failed to provide EEO memoranda to employees, and that the last manager he worked for would not allow employees access to the file cabinet where these types of memoranda were maintained.<1> Complainant also questioned why the EEO Counselor did not inform him that there was a problem with untimely contact. In responding to complainant's appeal, the agency analyzed each of the incidents identified by complainant, and argued that given the circumstances of each incident, complainant should have reasonably suspected discrimination at the time the incident occurred. The agency averred that the seventeen-month period between complainant's EEO Counselor contact and the date of the most recent incident of discrimination could not be justified. Moreover, the agency additionally argued complainant should have been aware of the EEO time limits because this information was conspicuously displayed on EEO posters, and issued in numerous all-employee memoranda. As evidence, the agency submitted copies of affidavits from the individuals responsible for ensuring the posting of EEO procedures and disseminating information on EEO procedures, as well as a copy of an agency newsletter and five memoranda regarding the EEO process, all dated within the time frame in which the incidents occurred. In the previous decision, the Commission found that the agency properly dismissed the complaint on the grounds of untimely EEO Counselor contact, and affirmed the agency's decision. The Commission noted complainant's arguments on appeal. However, the Commission found that the agency submitted persuasive evidence to demonstrate that it had provided its employees with information on EEO time requirements. In reviewing this evidence, the Commission determined that while the copies of the memoranda submitted by the agency dealt largely with sexual harassment, numerous affidavits attested that information about EEO time limits were posted on bulletin boards at complainant's workplace. Moreover, in reviewing a document entitled Employee Guide for its Equal Employment Opportunity Program, the Commission found that it contained a section delineating employee rights and time limits of the agency.<2> In his request for reconsideration, complainant challenges the credibility of the affidavits submitted by the agency, noting that he identified some of the affiants as discriminating officials in his complaint. Furthermore, complainant argues that the agency failed to submit copies of the EEO posters which it purportedly displayed on bulletin boards to corroborate the affidavits. Complainant additionally argues that the Employee Guide referenced by the previous decision was only first provided to him along with the agency's final decision to dismiss his complaint. In analyzing this Employee Guide, complainant notes that the phrase Employee Guide had been typed on the cover page of the document, presumably in an effort to make it look as if it had been disseminated to all employees. However, complainant contends that he never received it as an employee at the agency, and does not believe that other employees received it, arguing that the agency failed to provide evidence of its distribution. Instead, complainant avers that the document is most likely a guide for use of staff in the EEO office. Complainant also argues that the agency failed to submit any evidence that it provided training on the EEO process, and that the evidence it submits on appeal does not demonstrate that it provided information to employees regarding EEO processing time requirements. The agency offers no response to complainant's request for reconsideration. The issue now presented before the Commission is whether the previous decision properly affirmed the agency's final decision dismissing the instant complaint for failure to initiate timely EEO Counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1). 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. After carefully reviewing the entire record before us, we conclude that the previous decision was based on an erroneous interpretation of material fact in its determination that the agency had submitted sufficient evidence to show that it had provided adequate notice to complainant of the EEO time requirement for contacting an EEO Counselor. 29 C.F.R. § 1614.405(b) Instead, contrary to our previous decision, we now find that the agency failed to provide sufficient evidence to demonstrate that complainant had either actual or constructive knowledge of the forty-five day time limitation for contacting an EEO Counselor. Review of the newsletter and memoranda submitted by the agency on appeal reveals that none of these documents contains the time limit for contacting an EEO Counselor. Moreover, as noted by complainant, the agency fails to corroborate its affidavits with copies of the EEO posters which purportedly display the time limit for contacting an EEO Counselor. The Commission has long 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 to establish constructive knowledge of the time limits for EEO Counselor contact. See York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994); Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993). Furthermore, as contended by complainant, we find that the agency failed to produce any evidence that it distributed the Employee Guide to its employees in general, or to complainant in particular, prior to the issuance of its decision to dismiss his complaint for untimely EEO Counselor contact. Moreover, we find that the agency provides no evidence to show that complainant received any type of training regarding the EEO process. It is well settled that where, as here, there is an issue of timeliness, the agency always bears the burden of obtaining sufficient evidence to support its determination. Williams v. U.S. Postal Service, EEOC Appeal No. 01973397 (September 17, 1999). In this case, we find that the agency has failed to sustain its evidentiary burden, and that its dismissal of the instant complaint for untimely EEO Counselor contact was improper. After a review of complainant's request for reconsideration, the previous decision, and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to GRANT the complainant's request. The decision of the Commission in Appeal No. 01971900 and the final agency decision is REVERSED, and the case is REMANDED to the agency for processing of the instant complaint pursuant to the ORDER below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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. 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"). ________________ Frances M. Hart Executive Officer Executive Secretariat December 21, 2001 ________________ Date 1The record reflects that complainant retired from employment at the agency on December 31, 1995. 2Complainant also submitted a supplemental statement to the Commission, dated April 17, 1998, noting, the discrepancy between the Commission's regulations and the agency's thirty-day time limit for contacting an EEO Counselor, as set forth in the Employee Guide. This statement also noted that the time interval between the most recent discriminatory incident and his EEO Counselor contact is twelve months, not seventeen months, as stated by the agency and the Commission in its previous decision.	[ "Russell L. Moore v. U.S. Department of the Treasury, EEOC Appeal No. 01971900 (March 3, 1998)", "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "York v. Department of Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994)", "Pride v. U.S. Postal Service, EEOC Reques...	[ -0.0790385901927948, 0.08395560830831528, 0.009472038596868515, 0.01175287738442421, 0.005054529756307602, -0.005204681307077408, 0.003911969717592001, 0.015981687232851982, -0.004864674061536789, 0.008812841959297657, 0.012659704312682152, 0.02543097361922264, -0.03849145025014877, -0.025...
35	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A30509_r.txt	01A30509_r.txt	TXT	text/plain	6,693	Robert F. Clarke v. Department of the Air Force 01A30509 April 10, 2003 . Robert F. Clarke, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.	April 10, 2003	Appeal Number: 01A30509 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 untimely EEO Counselor contact. In his formal complaint, filed on August 13, 2002, complainant alleged that he was subjected to discrimination on the basis of disability when the agency terminated him in January 2001. The record discloses that the alleged discriminatory event occurred in January 2001, but that complainant did not contact an EEO Counselor withing forty-five days of the alleged discriminatory event. The record contains the statement of an EEO Counselor. Therein, the EEO Counselor stated that complainant contacted him by telephone in mid-December 2001, requesting an appointment; and that they met several days later, discussing complainant's termination. Upon learning that complainant was terminated effective January 2001, the EEO Counselor asked him to explain his delay in contacting an EEO Counselor; and complainant informed him that some time after his termination, he contacted an Administrative Judge (AJ) of the Commission, in the Miami District Office, who advised complainant that he must first pursue the matter through the agency's EEO complaint process. The EEO Counselor advised complainant to return to his office in approximately one week to complete required forms, but that complainant did not contact the EEO Counselor's office within that time frame, and that complainant did not respond to a voice mail message left by the EEO Counselor on his answering machine. The EEO Counselor indicates that he thereafter contacted complainant on August 2, 2002, and informed complainant that he, the EEO Counselor, was prepared to commence an informal inquiry, but that complainant must come to the agency facility to complete paperwork. Thereafter, contact was resumed with complainant, and the instant complaint was filed. On appeal, complainant claims that he contacted the EEOC District Office in Miami in late January 2001, and as directed by an AJ, contacted the agency's Homestead ARO EEO office; and it was not his fault that the agency's EEO office did not pursue the matter. We are unpersuaded by complainant's argument. The record indicates that following his contact with a Miami AJ, complainant did not contact an EEO Counselor until mid-December 2001, and then did not thereafter pursue the EEO complaint process until, following the EEO Counselor's initiative, the EEO Counselor again contacted complainant in August 2002. After a review of the record, the Commission finds that 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 is AFFIRMED.	Robert F. Clarke v. Department of the Air Force 01A30509 April 10, 2003 . Robert F. Clarke, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency. Appeal No. 01A30509 Agency No. AL900030076 DECISION 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. In his formal complaint, filed on August 13, 2002, complainant alleged that he was subjected to discrimination on the basis of disability when the agency terminated him in January 2001. The record discloses that the alleged discriminatory event occurred in January 2001, but that complainant did not contact an EEO Counselor withing forty-five days of the alleged discriminatory event. The record contains the statement of an EEO Counselor. Therein, the EEO Counselor stated that complainant contacted him by telephone in mid-December 2001, requesting an appointment; and that they met several days later, discussing complainant's termination. Upon learning that complainant was terminated effective January 2001, the EEO Counselor asked him to explain his delay in contacting an EEO Counselor; and complainant informed him that some time after his termination, he contacted an Administrative Judge (AJ) of the Commission, in the Miami District Office, who advised complainant that he must first pursue the matter through the agency's EEO complaint process. The EEO Counselor advised complainant to return to his office in approximately one week to complete required forms, but that complainant did not contact the EEO Counselor's office within that time frame, and that complainant did not respond to a voice mail message left by the EEO Counselor on his answering machine. The EEO Counselor indicates that he thereafter contacted complainant on August 2, 2002, and informed complainant that he, the EEO Counselor, was prepared to commence an informal inquiry, but that complainant must come to the agency facility to complete paperwork. Thereafter, contact was resumed with complainant, and the instant complaint was filed. On appeal, complainant claims that he contacted the EEOC District Office in Miami in late January 2001, and as directed by an AJ, contacted the agency's Homestead ARO EEO office; and it was not his fault that the agency's EEO office did not pursue the matter. We are unpersuaded by complainant's argument. The record indicates that following his contact with a Miami AJ, complainant did not contact an EEO Counselor until mid-December 2001, and then did not thereafter pursue the EEO complaint process until, following the EEO Counselor's initiative, the EEO Counselor again contacted complainant in August 2002. After a review of the record, the Commission finds that 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 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 10, 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" ]	[ -0.05527467280626297, 0.09387386590242386, -0.08570490032434464, 0.015988662838935852, 0.09274594485759735, -0.0001518685312476009, 0.04783609136939049, 0.02101730741560459, -0.0007873671711422503, 0.06722352653741837, 0.03198036551475525, 0.02936745062470436, -0.03413590043783188, 0.01565...
36	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520120246.txt	0520120246.txt	TXT	text/plain	7,509	Marc A. Robinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.	December 14, 2011	Appeal Number: 0120100683 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(b). ISSUE PRESENTED The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. BACKGROUND Complainant filed a June 25, 2005, EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on February 24, 2005, the Agency terminated his employment after a Fitness for Duty examination concluded that he was unfit for duty. After Complainant requested a hearing before an EEOC Administrative Judge (AJ), the AJ issued an October 5, 2009, decision granting the Agency's Motion to Dismiss for Untimely Filing and Motion for a Decision without a Hearing. The AJ found that Complainant had not raised the allegation of discrimination in a timely manner and had not shown that the Agency discriminated against him on the basis of disability when it terminated his employment. The Agency issued a final order adopting the AJ's findings, and Complainant appealed to this Commission. In our previous decision, we affirmed the finding that Complainant failed to show that he timely contacted an EEO Counselor regarding the matters in this case. We concluded that, although Complainant contacted an EEO Counselor on March 9, 2005, nothing in the record indicated that Complainant intended to begin the EEO process at that time. In that regard, we noted that a March 9, 2005, "Contact Sheet" stated that the EEO bases at issue were "none at this time" and that Complainant "will not discuss" his reasons for contacting the EEO office. We also noted that the Agency's EEO Office sent Complainant an information packet on March 10, 2009, that the packet informed Complainant of the proper time frames, that Complainant did not make any further contact with the EEO office until he faxed documents to the EEO Counselor on April 26, 2005, and that he provided no explanation for his delay in submitting the forms.	Marc A. Robinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 0520120246 Appeal No. 0120100683 Hearing No. 520-2008-00048X Agency No. HS-05-TSA-002242 DENIAL Complainant timely requested reconsideration of the decision in Marc A. Robinson v. Department of Homeland Security, EEOC Appeal No. 0120100683 (December 14, 2011). 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). ISSUE PRESENTED The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. BACKGROUND Complainant filed a June 25, 2005, EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on February 24, 2005, the Agency terminated his employment after a Fitness for Duty examination concluded that he was unfit for duty. After Complainant requested a hearing before an EEOC Administrative Judge (AJ), the AJ issued an October 5, 2009, decision granting the Agency's Motion to Dismiss for Untimely Filing and Motion for a Decision without a Hearing. The AJ found that Complainant had not raised the allegation of discrimination in a timely manner and had not shown that the Agency discriminated against him on the basis of disability when it terminated his employment. The Agency issued a final order adopting the AJ's findings, and Complainant appealed to this Commission. In our previous decision, we affirmed the finding that Complainant failed to show that he timely contacted an EEO Counselor regarding the matters in this case. We concluded that, although Complainant contacted an EEO Counselor on March 9, 2005, nothing in the record indicated that Complainant intended to begin the EEO process at that time. In that regard, we noted that a March 9, 2005, "Contact Sheet" stated that the EEO bases at issue were "none at this time" and that Complainant "will not discuss" his reasons for contacting the EEO office. We also noted that the Agency's EEO Office sent Complainant an information packet on March 10, 2009, that the packet informed Complainant of the proper time frames, that Complainant did not make any further contact with the EEO office until he faxed documents to the EEO Counselor on April 26, 2005, and that he provided no explanation for his delay in submitting the forms. Accordingly, we found that Complainant failed to establish that he timely contacted an EEO Counselor to initiate the EEO process. Having affirmed the finding that Complainant did not initiate the EEO process in a timely manner, we concluded that it was not necessary to determine whether the AJ correctly found that the Agency did not discriminate against Complainant. ARGUMENTS ON RECONSIDERATION In his request for reconsideration, Complainant argues that he contacted an EEO Counselor in a timely manner. He asserts that he raised allegations of sexual harassment and race, disability, and reprisal discrimination during a March 9, 2005, telephone call with the EEO Counselor. He also asserts that the Counselor falsified the Contact Sheet by stating that Complainant did not raise any EEO bases and would not discuss matters with the Counselor. The Agency did not file a reply to Complainant's request. DETERMINATION We note that 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. Nov. 9, 1999), at 9-17; 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 (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Complainant failed to show that the appellate decision clearly erred in affirming the determination that he did not initiate EEO counseling in a timely manner. As we noted on appeal, nothing in the record indicates that Complainant intended to begin the EEO process on March 9, 2005. Further, the record does not support Complainant's assertion that the EEO Counselor falsified the Contact Sheet. Complainant's mere assertion, raised for the first time in this request, is insufficient to establish that the Contact Sheet contained false information or that our previous decision erroneously concluded that Complainant failed to initiate the EEO process in a timely manner. 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120100683 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations November 30, 2012 Date	[ "Marc A. Robinson v. Department of Homeland Security, EEOC Appeal No. 0120100683 (December 14, 2011)", "Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007)", "29 C.F.R. § 1614.405(b)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.024751808494329453, 0.09604752063751221, 0.03523559868335724, 0.01028130017220974, 0.032407429069280624, 0.015435622073709965, 0.06581442058086395, 0.029664626345038414, 0.0020705373026430607, 0.04106057062745094, 0.016952034085989, 0.006038346327841282, 0.020244361832737923, 0.02163049...
37	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001810.pdf	2023001810.pdf	PDF	application/pdf	12,741	Coleen M .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.	December 30, 2022	Appeal Number: 2023001810 Background: During the period at issue, Complainant worked for the Agency as a Human Resource Specialist in Hines, Illinois. On December 13, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliation for engaging in protected EEO activity. In its f inal decision, dated December 30, 2022, the Agency determined that the formal complaint was comprised of the following claim: On July 11, 2022, [Complainant] was not selected for the position of Human Resource Specialist (Worker’s Compensation), CBSW-11463641-22- KRK. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that the non- selection occurred on July 11, 2022, but that Complainant did not initiate EEO contact until November 8, 2022, outside of the appli cable time period. The Agency found that Complainant did not provide sufficient justification for extending the applicable time limit. The instant appeal followed. On appeal, Complainant acknowledges that she was notified of her non-selection on July 11 , 2022. 2 Complainant asserts that she followed her chain of command. Complainant states that she contacted a human resources official on August 9, 2022 for a “report under the Whistleblower Protection Act”. Complainant further asserts that on August 16, 2022, she contacted the Office of Accountability and Whistleblower Protection (OAWP). Finally, Complainant asserts that on August 25, 2022, she contacted an EEO Manager who indicated that an official investigation was going to be conducted and sets forth “please see attached document.” In response, the Agency requests that we affirm its final decision. 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 "r easonable 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 discr imination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that s he was not notified of the time limits and was not otherwise aware of them, that s he did not know and r easonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence s he was pre vented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons conside red sufficient by the agency or the Commission. The Agency properly dismissed the formal complaint for untimely EEO Counselor contact. The EEO Counselor’s Report reflects that Complainant initiated EEO contact regarding the instant matter on November 8, 2022. Complaint File at 17. 3 Complainant’s formal complaint lists the date of contact with “ORM” (Office of Resolution Management ) as November 19, 2022.4 2 The record also contains a copy of an email from USAStaffing t o Complainant dated July 11, 2022, informing her that she was not selected for the position at issue. 3 Citations to the Complaint File refer to the pages of the PDF document . 4 The two November 2022 EEO contact dates referenced in the EEO Counselor’s Report and formal complaint are both untimely with respect to the July 11, 2022 non- selection claim . Complainant asserts, on appeal, that she contacted various offices, such as OAWP, regarding whistleblower allegations . Such actions, however, are insufficient to establish EEO contact (contact with an official logically connected to the EEO process and exhibit an intent to begin the EEO process). The record contains a memorandum dated November 23, 2022 pertaining to whistleblower allegations involving Complainant. The memorandum references that Complainant alleged her privacy was violated when an A gency official contacted her current supervisor without her permission and that a prohibited personnel practice was committed when her current supervisor was allowed to sit on an interview panel in which she was an applicant. Complaint File at 22 -25. These allegations do not exhibit an intent to pursue the EEO process (an allegation of di scrimination involving an EEO basis) or contact with an official logically connected to the EEO process . We acknowledge that the record contains an email from the Agency EEO Counselor/Specialist dated November 28, 2022 to an Agency EEO Manager stating “Today, I had an initial interview with [Complainant] who has initiated an EEO complaint. She stated that sh e met with an EEO individual. I’m inquiri ng if there was a report of contact drafted…” Complaint File at 52. The Agency EEO Manager responded “I met with [Complainant] on [August 25, 2022 and September 22, 2022]. She was provided EEO brochures on [August 25, 2022]. I have spoke n with leadersh ip and a fact -finding is currently being conducted on her allegations of harassment.” Complaint File at 52. The record also contains a memorandum dated December 1, 2022 pertaining to fact -finding allegations of harassment made by Complainant involving her supervisor. The allegations of harassment included various incidents such as a letter of counseling, an avatar used by Complainant’s supervisor which she found intimidating, and not being informed by her supervisor about a bomb threat at her work facil ity. The memorandum also provides, in pertinent part, that Complainant alleged that “[ her supervisor] provided information regarding a complaint involving her non- selection as a candidate for a VISN 21 position. This concern was a part of a separate inve stigation and not within the scope of this fact -finding.” Complaint File at 34. Based on the foregoing, we do not find evidence that Complainant exhibited an intent to initiate the EEO process regarding the insta nt non- selection in her EEO contacts prior to November 2022. We note that Complainant, on appeal, asserts that she attached a document regarding her EEO contact in August 2022. However, the only other document submitted by Complainant on appeal reference s “recommendations” based on memoranda per taining to her whistleblower allegations and the fact -finding on her harassment allegations. As set forth above, we do not find that these memoranda and fact -findings encompassed her current EEO complaint (allegat ion of discrimination on an EEO basis) whi ch involved a specific non- selection. The record is devoid of adequate justification for extending the applicable time limit. 5 This memorandum also references other allegations that do not involve the instant non - selection.	Coleen M .,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2023001810 Agency No. 200P-10N21-2023-1492 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 30, 2022, dismissing ha 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Human Resource Specialist in Hines, Illinois. On December 13, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliation for engaging in protected EEO activity. In its f inal decision, dated December 30, 2022, the Agency determined that the formal complaint was comprised of the following claim: On July 11, 2022, [Complainant] was not selected for the position of Human Resource Specialist (Worker’s Compensation), CBSW-11463641-22- KRK. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that the non- selection occurred on July 11, 2022, but that Complainant did not initiate EEO contact until November 8, 2022, outside of the appli cable time period. The Agency found that Complainant did not provide sufficient justification for extending the applicable time limit. The instant appeal followed. On appeal, Complainant acknowledges that she was notified of her non-selection on July 11 , 2022. 2 Complainant asserts that she followed her chain of command. Complainant states that she contacted a human resources official on August 9, 2022 for a “report under the Whistleblower Protection Act”. Complainant further asserts that on August 16, 2022, she contacted the Office of Accountability and Whistleblower Protection (OAWP). Finally, Complainant asserts that on August 25, 2022, she contacted an EEO Manager who indicated that an official investigation was going to be conducted and sets forth “please see attached document.” In response, the Agency requests that we affirm its final decision. 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. The Commission has adopted a "r easonable 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 discr imination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that s he was not notified of the time limits and was not otherwise aware of them, that s he did not know and r easonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence s he was pre vented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons conside red sufficient by the agency or the Commission. The Agency properly dismissed the formal complaint for untimely EEO Counselor contact. The EEO Counselor’s Report reflects that Complainant initiated EEO contact regarding the instant matter on November 8, 2022. Complaint File at 17. 3 Complainant’s formal complaint lists the date of contact with “ORM” (Office of Resolution Management ) as November 19, 2022.4 2 The record also contains a copy of an email from USAStaffing t o Complainant dated July 11, 2022, informing her that she was not selected for the position at issue. 3 Citations to the Complaint File refer to the pages of the PDF document . 4 The two November 2022 EEO contact dates referenced in the EEO Counselor’s Report and formal complaint are both untimely with respect to the July 11, 2022 non- selection claim . Complainant asserts, on appeal, that she contacted various offices, such as OAWP, regarding whistleblower allegations . Such actions, however, are insufficient to establish EEO contact (contact with an official logically connected to the EEO process and exhibit an intent to begin the EEO process). The record contains a memorandum dated November 23, 2022 pertaining to whistleblower allegations involving Complainant. The memorandum references that Complainant alleged her privacy was violated when an A gency official contacted her current supervisor without her permission and that a prohibited personnel practice was committed when her current supervisor was allowed to sit on an interview panel in which she was an applicant. Complaint File at 22 -25. These allegations do not exhibit an intent to pursue the EEO process (an allegation of di scrimination involving an EEO basis) or contact with an official logically connected to the EEO process . We acknowledge that the record contains an email from the Agency EEO Counselor/Specialist dated November 28, 2022 to an Agency EEO Manager stating “Today, I had an initial interview with [Complainant] who has initiated an EEO complaint. She stated that sh e met with an EEO individual. I’m inquiri ng if there was a report of contact drafted…” Complaint File at 52. The Agency EEO Manager responded “I met with [Complainant] on [August 25, 2022 and September 22, 2022]. She was provided EEO brochures on [August 25, 2022]. I have spoke n with leadersh ip and a fact -finding is currently being conducted on her allegations of harassment.” Complaint File at 52. The record also contains a memorandum dated December 1, 2022 pertaining to fact -finding allegations of harassment made by Complainant involving her supervisor. The allegations of harassment included various incidents such as a letter of counseling, an avatar used by Complainant’s supervisor which she found intimidating, and not being informed by her supervisor about a bomb threat at her work facil ity. The memorandum also provides, in pertinent part, that Complainant alleged that “[ her supervisor] provided information regarding a complaint involving her non- selection as a candidate for a VISN 21 position. This concern was a part of a separate inve stigation and not within the scope of this fact -finding.” Complaint File at 34. Based on the foregoing, we do not find evidence that Complainant exhibited an intent to initiate the EEO process regarding the insta nt non- selection in her EEO contacts prior to November 2022. We note that Complainant, on appeal, asserts that she attached a document regarding her EEO contact in August 2022. However, the only other document submitted by Complainant on appeal reference s “recommendations” based on memoranda per taining to her whistleblower allegations and the fact -finding on her harassment allegations. As set forth above, we do not find that these memoranda and fact -findings encompassed her current EEO complaint (allegat ion of discrimination on an EEO basis) whi ch involved a specific non- selection. The record is devoid of adequate justification for extending the applicable time limit. 5 This memorandum also references other allegations that do not involve the instant non - selection. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the formal 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 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 reconsi deration . 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 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 Comm ission, 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 mai l 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 req uired. 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 submit ted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after th e 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 ci vil 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: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 20, 2023 Date	[ "Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 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. § 1614.403(g)", "29 C.F.R. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.13047029078006744, 0.09366583824157715, -0.011906217783689499, 0.01679333485662937, 0.012479634024202824, 0.04038390889763832, 0.02411184459924698, -0.005960735026746988, 0.01658436469733715, 0.043560996651649475, 0.04347176477313042, -0.042970750480890274, -0.03668883442878723, -0.0047...
38	https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2023000904.pdf	2023000904.pdf	PDF	application/pdf	12,809	Larissa E. ,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.	August 19, 2022	Appeal Number: 2023000904 Background: During the period at issue , Complainant worked as a Sales Store Worker at the Agency’s Fort Myer Commissary in Virginia . On August 17, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American ), color (Black ), disability, and reprisal for prior protected EEO activity (contacting the EEO Office) . In its final decision, dated August 19, 2022, the Agency determined that Complainant’s complaint was comprised of the following claims: 1. Beginning in June 2020 to October 15, 2021, [two named Agency officials] harassed [Complainant] (i.e., yelling, rude emails, threatening comments, over scr utinizing “call- ins” intentionally delaying Family Medical Leave processing, accusations of “stealing a credit card”, preventing [her] ability to exit the office) . 2. On or about October 9, 2021, [a named Agency official] threatened [her] with Absence With out Leave (AWOL) . 3. On or about October 15, 2021, [ she] resigned from [h er] position as a Sales Sto re Worker, GS -0291- 03, employee of the [Agency] assigned to the Fort Myer Commissary. The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 24, 2022, more than 45 days from her resignation on October 15, 2021. The Agency noted that in March 2021, Complainant contacted the Agency’s EEO Office , but did not pur sue an EEO complaint at that time. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing her complaint. Complainant asserts that the Agency’s final decision improperly provided her appeal rig hts to the Merit Systems Protection Board (MSPB) and that the MSPB dismissed her appeal for lack of jurisdiction. Complainant asserts that s he initially contacted the Agency’s EEO Office in March 2021 , but did not file a formal complaint due to intimidation and fear of reprisal. Complainant asserts that she contacted the EEO Office again in September 2021. Complainant asserts that she also did not file a formal complaint during this time due to fear of retaliation. Complainant asserts that she was under duress when she resigned on October 15, 2021. Complainant further asserts that in October 2021, after h er resignation (alleged constructive discharge) , that she contacted the EEO Office, but no one responded to h er calls and that the EEOC provided her with the Agency’s EEO Office number which s he contacted on June 24, 2022. In response, the Agency r equests that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates that Complainant did not initiate EEO contact with the in tent to pursue the EEO process until June 24, 2022. The Agency asserts that the record contain s documentation that information regarding the applicable time limit and contact information were on display in the breakroom at Complainant’s facility during the relevant time period. The Agency further asserts that Complainant’s appeal to the Commission’ s Office of Federal Operations (OFO) is untimely but acknowledges that it improperly provided Complainant appeal rights in the final decision to the MSPB rather than to the EEOC. Legal Analysis: the Commission’ s Office of Federal Operations (OFO) is untimely but acknowledges that it improperly provided Complainant appeal rights in the final decision to the MSPB rather than to the EEOC. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant’s appeal is properly before us. The record reflects that the Agency’s final decision improperly provided Complainant appeal rights to the MSPB rather than the EEOC. Complainant subsequently filed an appeal w ith the MSPB. On October 20, 2022, the MSPB issued an initial decision dismissing Complainant’s appeal for lack of jurisdiction. Complainant subsequently filed the instant appeal with EEOC . Based on the foreg oing, including the Agency improperly providi ng Complainant appeal rights to the MSPB rather than the EEOC , we find that this matter is now properly before us. We further find that the Agency properly dismissed Complainant’s formal 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 fort y-five (45) day limitation period is triggere d. 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 s upport 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 ha ve 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. Complainant ’s resignation (alleged constructive discharge ) occurred on October 15, 2021, but Complainant did not initiate EEO contact until June 24, 2022, outside of the applicable time period. While Complainant asserts that she initiated EEO contact in March 2021 and September 2021, she acknowledges , in her sta tement on appeal, that she did not pursue filing an EEO complaint due to fear or retaliation. The Commission has previously h eld that fear of reprisal is an insufficient justification for extending the applicable time limitation for contacting an EEO Counselor. See Duncan v. Dep’t of Veteran Affairs , EEOC Request No. 05970315 (July 10, 1998). To the extent Complainant asserts that she tried contacting the Agency’s EEO Office after her resignation in October 2021 and she was not able to reach the Agency’ s EEO Office until EEOC provided her the number in June 2022, we are not persuaded by this assertion. 2 The record is devoid of documentation reflecting that Complainant initiated EEO contact wi th the intent to pursue the EEO process, subsequent to her resignation on October 25, 2021 and prior to her June 24, 2022 EEO contact . The Agency, with its re sponse brief, provides documentation, that the Agency had on display in the employee breakroom at Complainant’s facility , during the relevant time period , an EEO poster setting forth the 45- day time limit to initiate EEO contact. In addition, the EEO poster sets forth various ways to contact the Agency’s EEO Office: phone number, email and mailing address. Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the applicable time limit.	Larissa E. ,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2023000904 Agency No. DeCA-00139-2022 DECISION Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 19, 2022, dismissing her 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., and Section 501 of the Rehabil itation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue , Complainant worked as a Sales Store Worker at the Agency’s Fort Myer Commissary in Virginia . On August 17, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American ), color (Black ), disability, and reprisal for prior protected EEO activity (contacting the EEO Office) . In its final decision, dated August 19, 2022, the Agency determined that Complainant’s complaint was comprised of the following claims: 1. Beginning in June 2020 to October 15, 2021, [two named Agency officials] harassed [Complainant] (i.e., yelling, rude emails, threatening comments, over scr utinizing “call- ins” intentionally delaying Family Medical Leave processing, accusations of “stealing a credit card”, preventing [her] ability to exit the office) . 2. On or about October 9, 2021, [a named Agency official] threatened [her] with Absence With out Leave (AWOL) . 3. On or about October 15, 2021, [ she] resigned from [h er] position as a Sales Sto re Worker, GS -0291- 03, employee of the [Agency] assigned to the Fort Myer Commissary. The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 24, 2022, more than 45 days from her resignation on October 15, 2021. The Agency noted that in March 2021, Complainant contacted the Agency’s EEO Office , but did not pur sue an EEO complaint at that time. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing her complaint. Complainant asserts that the Agency’s final decision improperly provided her appeal rig hts to the Merit Systems Protection Board (MSPB) and that the MSPB dismissed her appeal for lack of jurisdiction. Complainant asserts that s he initially contacted the Agency’s EEO Office in March 2021 , but did not file a formal complaint due to intimidation and fear of reprisal. Complainant asserts that she contacted the EEO Office again in September 2021. Complainant asserts that she also did not file a formal complaint during this time due to fear of retaliation. Complainant asserts that she was under duress when she resigned on October 15, 2021. Complainant further asserts that in October 2021, after h er resignation (alleged constructive discharge) , that she contacted the EEO Office, but no one responded to h er calls and that the EEOC provided her with the Agency’s EEO Office number which s he contacted on June 24, 2022. In response, the Agency r equests that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates that Complainant did not initiate EEO contact with the in tent to pursue the EEO process until June 24, 2022. The Agency asserts that the record contain s documentation that information regarding the applicable time limit and contact information were on display in the breakroom at Complainant’s facility during the relevant time period. The Agency further asserts that Complainant’s appeal to the Commission’ s Office of Federal Operations (OFO) is untimely but acknowledges that it improperly provided Complainant appeal rights in the final decision to the MSPB rather than to the EEOC. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant’s appeal is properly before us. The record reflects that the Agency’s final decision improperly provided Complainant appeal rights to the MSPB rather than the EEOC. Complainant subsequently filed an appeal w ith the MSPB. On October 20, 2022, the MSPB issued an initial decision dismissing Complainant’s appeal for lack of jurisdiction. Complainant subsequently filed the instant appeal with EEOC . Based on the foreg oing, including the Agency improperly providi ng Complainant appeal rights to the MSPB rather than the EEOC , we find that this matter is now properly before us. We further find that the Agency properly dismissed Complainant’s formal 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 fort y-five (45) day limitation period is triggere d. 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 s upport 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 ha ve 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. Complainant ’s resignation (alleged constructive discharge ) occurred on October 15, 2021, but Complainant did not initiate EEO contact until June 24, 2022, outside of the applicable time period. While Complainant asserts that she initiated EEO contact in March 2021 and September 2021, she acknowledges , in her sta tement on appeal, that she did not pursue filing an EEO complaint due to fear or retaliation. The Commission has previously h eld that fear of reprisal is an insufficient justification for extending the applicable time limitation for contacting an EEO Counselor. See Duncan v. Dep’t of Veteran Affairs , EEOC Request No. 05970315 (July 10, 1998). To the extent Complainant asserts that she tried contacting the Agency’s EEO Office after her resignation in October 2021 and she was not able to reach the Agency’ s EEO Office until EEOC provided her the number in June 2022, we are not persuaded by this assertion. 2 The record is devoid of documentation reflecting that Complainant initiated EEO contact wi th the intent to pursue the EEO process, subsequent to her resignation on October 25, 2021 and prior to her June 24, 2022 EEO contact . The Agency, with its re sponse brief, provides documentation, that the Agency had on display in the employee breakroom at Complainant’s facility , during the relevant time period , an EEO poster setting forth the 45- day time limit to initiate EEO contact. In addition, the EEO poster sets forth various ways to contact the Agency’s EEO Office: phone number, email and mailing address. Based on the foregoing, we find that Complainant has not provided sufficient justification for extending the applicable time limit. CONCLUSION Accord ingly, 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 wri tten 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 decision will have a substantial impact on the policies, pr actices, 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 to gether 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 b rief 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 a ny statement or brief in support of his or her request, via the EEOC Public Por tal, 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, 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 reques t 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 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) c alendar days from the date that you r eceive 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 offic ial title. Failure to do so may resu lt 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 actio n 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 (pl ease 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 29, 2023 Date	[ "Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)", "EEO Counselor. See Duncan v. Dep’t of Veteran Affairs , EEOC Request No. 05970315 (July 10, 1998)", "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)", ...	[ -0.0808553546667099, 0.08549346774816513, -0.025636358186602592, 0.0006491380627267063, 0.013384133577346802, 0.0696323812007904, 0.020227301865816116, 0.009420238435268402, -0.020421236753463745, 0.03931373357772827, 0.021544137969613075, -0.028424164280295372, -0.011473409831523895, -0.0...
39	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a61930.txt	01a61930.txt	TXT	text/plain	13,918	Joyce A. Wallace v. Department of the Air Force 01A61930 July 26, 2006 . Joyce A. Wallace, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.	July 26, 2006	Appeal Number: 01A61930 Case Facts: Complainant filed an appeal with this Commission from the February 16, 2006 agency decision which implemented the January 5, 2006 decision of the EEOC Administrative Judge (AJ) finding no discrimination. Complainant alleged that the agency discriminated against her on the basis of sex (female) when Equal Employment Opportunity (EEO) Managers subjected her to a hostile work environment from September 10, 2001, through September 10, 2003: 1. From January to September 2003, the EEO Manager claimed complainant's work as his own by taking responsibility for the EEO Net Report for which she was solely responsible. 2. From January to September 2003, the EEO Manager continually promised complainant's position to Person A, the female secretary to the Wing Commander. 3. In March 2003, the EEO Manager told the EEO Specialist of his intention to get rid of complainant because he could not deal with her aggressiveness and on August 8, 2003, the EEO Manager advised complainant that he would not be extending her term appointment and she was terminated on September 9, 2003. 4. On April 4, 2003, the EEO Manager called complainant at home and informed her that she was placed on absence without leave (AWOL) and when she reminded him that he had previously approved her leave, he stated that he had forgotten. On April 30, 2003, the EEO Manager engaged in the same conduct when he informed the Director of Staff that complainant was on AWOL and she denied the AWOL charge and informed the WG Director of Staff. 5. On August 6, and August 7, 2003, the EEO Manager informed complainant to submit leave slips for being 15 minutes late to work and for two hours of leave, treating her less favorably than male Employee A and male Employee B and the EEO Manager himself when they were absent and not charged leave or placed on AWOL. 6. During the entire time period complainant worked under the EEO Manager's supervision, he never issued her a performance appraisal or counseled her regarding her performance but on September 8, 2003, the day before her termination, the EEO Manager informed her that her 2002-2003 appraisal was ready and she refused to sign it. Complainant noted that the EEO Manager and the reviewing official had signed her appraisal on June 1, 2003, and their taking three months to issue the appraisal constituted harassment. Complainant also alleged that the EEO Manager constantly subjected her to a cold, negative work environment and singled her out by treating her differently from male staff, that the EEO Manager frequently walked by her office, stopping and staring at her in a negative fashion but never saying anything to her. She also alleged that she was subjected to strict time and attendance treatment and repeated discussions concerning her work and conduct. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an AJ. Following the hearing, the AJ issued his decision finding no discrimination. The AJ concluded that complainant failed to establish a prima facie case of disparate treatment or hostile work environment based on her sex. The AJ noted that she was were not similarly situated to the two male comparatives (Employees A and B), noting that the two males were career permanent employees, had different starting times than complainant and Employees A and B were meeting the expectations of the EEO Manager and complainant was not. Regarding complainant's claim of a hostile work environment, the AJ noted that complainant failed to show that the agency's alleged actions had the purpose or effect of unreasonably interfering with her work performance or creating an intimidating, hostile or offensive work environment. The AJ further concluded that even if complainant had established a prima facie case of a hostile work environment, complainant failed to show that it was sufficiently severe or pervasive to alter the conditions of her employment. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or in reprisal is unlawful. To establish a prima facie case of harassment, a complainant must show that: (1) complainant belongs to a statutorily protected class; (2) complainant 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 the statutorily protected class; and (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) some basis exists to impute liability to the employer, i.e., supervisory employees knew or should have known of the conduct but failed to take corrective action. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an Administrative Judge will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Additionally, the Commission notes that an AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Further, an AJ's credibility determinations are entitled to deference due to the AJ's first-hand knowledge through personal observation of the demeanor and conduct of the witness at the hearing. Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001). Legal Analysis: the Commission notes that an AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Further, an AJ's credibility determinations are entitled to deference due to the AJ's first-hand knowledge through personal observation of the demeanor and conduct of the witness at the hearing. Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001). Upon review, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts. The record reveals that complainant was a two-year term employee and that her appointment expired on September 9, 2003. The record also reveals that complainant's supervisor, the EEO Manager, who began working in the EEO Office in January 2003, found complainant deficient in attitude, aptitude, and ability and that he took actions towards complainant as a result of her conduct and her performance. The record reveals further that the EEO Manager counseled complainant regarding her work standards and expectations but that she failed to improve and her performance remained inconsistent and marginal. The record also reveals that the EEO Manager assigned to complainant the duty of preparing the EEO Net Report but that because there was an unacceptable level of discrepancies in the report and incomplete and erroneous data, by July 2003, he began to complete the report himself. The record reveals further that the EEO Manager allowed employees who were late to make up time at the end of the day when the employees were a few minutes late but that complainant abused the policy and was frequently late. The record reveals that complainant failed to improve her time and attendance. The record also reveals that the EEO Manager testified that he required that complainant take leave for being late on August 6, 2003, and because complainant was late every day from August 4, through August 8, 2003, complainant was required to take leave. The EEO Manager testified that he never charged complainant with AWOL but that he did notify the Director of Staff that complainant was AWOL because she was late and had not called in to notify him. The record reflects that the EEO Manager treated complainant in the same manner as other employees regarding her time and attendance until her tardiness became excessive and she failed to follow proper procedures when she was late. The record reflects that by the end of August 2003, the EEO Manager decided not to extend complainant's term appointment because her performance was marginal, her time and attendance performance was unacceptable, and she had not developed a good work ethic. After a careful review of the record, including arguments and evidence not specifically addressed in this decision, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record. Even assuming that complainant established a prima facie case, complainant has not shown that the agency's explanations for its actions were mere pretext to hide unlawful discrimination. Further, complainant did not establish by a preponderance of the evidence that the agency's actions were motivated by discriminatory animus. We discern no basis to disturb the AJ's decision. The agency decision finding no discrimination is AFFIRMED.	Joyce A. Wallace v. Department of the Air Force 01A61930 July 26, 2006 . Joyce A. Wallace, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency. Appeal No. 01A61930 Agency No. 1C-401-0078-04 Hearing No. 120-2005-00495X DECISION Complainant filed an appeal with this Commission from the February 16, 2006 agency decision which implemented the January 5, 2006 decision of the EEOC Administrative Judge (AJ) finding no discrimination. Complainant alleged that the agency discriminated against her on the basis of sex (female) when Equal Employment Opportunity (EEO) Managers subjected her to a hostile work environment from September 10, 2001, through September 10, 2003: 1. From January to September 2003, the EEO Manager claimed complainant's work as his own by taking responsibility for the EEO Net Report for which she was solely responsible. 2. From January to September 2003, the EEO Manager continually promised complainant's position to Person A, the female secretary to the Wing Commander. 3. In March 2003, the EEO Manager told the EEO Specialist of his intention to get rid of complainant because he could not deal with her aggressiveness and on August 8, 2003, the EEO Manager advised complainant that he would not be extending her term appointment and she was terminated on September 9, 2003. 4. On April 4, 2003, the EEO Manager called complainant at home and informed her that she was placed on absence without leave (AWOL) and when she reminded him that he had previously approved her leave, he stated that he had forgotten. On April 30, 2003, the EEO Manager engaged in the same conduct when he informed the Director of Staff that complainant was on AWOL and she denied the AWOL charge and informed the WG Director of Staff. 5. On August 6, and August 7, 2003, the EEO Manager informed complainant to submit leave slips for being 15 minutes late to work and for two hours of leave, treating her less favorably than male Employee A and male Employee B and the EEO Manager himself when they were absent and not charged leave or placed on AWOL. 6. During the entire time period complainant worked under the EEO Manager's supervision, he never issued her a performance appraisal or counseled her regarding her performance but on September 8, 2003, the day before her termination, the EEO Manager informed her that her 2002-2003 appraisal was ready and she refused to sign it. Complainant noted that the EEO Manager and the reviewing official had signed her appraisal on June 1, 2003, and their taking three months to issue the appraisal constituted harassment. Complainant also alleged that the EEO Manager constantly subjected her to a cold, negative work environment and singled her out by treating her differently from male staff, that the EEO Manager frequently walked by her office, stopping and staring at her in a negative fashion but never saying anything to her. She also alleged that she was subjected to strict time and attendance treatment and repeated discussions concerning her work and conduct. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an AJ. Following the hearing, the AJ issued his decision finding no discrimination. The AJ concluded that complainant failed to establish a prima facie case of disparate treatment or hostile work environment based on her sex. The AJ noted that she was were not similarly situated to the two male comparatives (Employees A and B), noting that the two males were career permanent employees, had different starting times than complainant and Employees A and B were meeting the expectations of the EEO Manager and complainant was not. Regarding complainant's claim of a hostile work environment, the AJ noted that complainant failed to show that the agency's alleged actions had the purpose or effect of unreasonably interfering with her work performance or creating an intimidating, hostile or offensive work environment. The AJ further concluded that even if complainant had established a prima facie case of a hostile work environment, complainant failed to show that it was sufficiently severe or pervasive to alter the conditions of her employment. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or in reprisal is unlawful. To establish a prima facie case of harassment, a complainant must show that: (1) complainant belongs to a statutorily protected class; (2) complainant 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 the statutorily protected class; and (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) some basis exists to impute liability to the employer, i.e., supervisory employees knew or should have known of the conduct but failed to take corrective action. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an Administrative Judge will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Additionally, the Commission notes that an AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Further, an AJ's credibility determinations are entitled to deference due to the AJ's first-hand knowledge through personal observation of the demeanor and conduct of the witness at the hearing. Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001). Upon review, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts. The record reveals that complainant was a two-year term employee and that her appointment expired on September 9, 2003. The record also reveals that complainant's supervisor, the EEO Manager, who began working in the EEO Office in January 2003, found complainant deficient in attitude, aptitude, and ability and that he took actions towards complainant as a result of her conduct and her performance. The record reveals further that the EEO Manager counseled complainant regarding her work standards and expectations but that she failed to improve and her performance remained inconsistent and marginal. The record also reveals that the EEO Manager assigned to complainant the duty of preparing the EEO Net Report but that because there was an unacceptable level of discrepancies in the report and incomplete and erroneous data, by July 2003, he began to complete the report himself. The record reveals further that the EEO Manager allowed employees who were late to make up time at the end of the day when the employees were a few minutes late but that complainant abused the policy and was frequently late. The record reveals that complainant failed to improve her time and attendance. The record also reveals that the EEO Manager testified that he required that complainant take leave for being late on August 6, 2003, and because complainant was late every day from August 4, through August 8, 2003, complainant was required to take leave. The EEO Manager testified that he never charged complainant with AWOL but that he did notify the Director of Staff that complainant was AWOL because she was late and had not called in to notify him. The record reflects that the EEO Manager treated complainant in the same manner as other employees regarding her time and attendance until her tardiness became excessive and she failed to follow proper procedures when she was late. The record reflects that by the end of August 2003, the EEO Manager decided not to extend complainant's term appointment because her performance was marginal, her time and attendance performance was unacceptable, and she had not developed a good work ethic. After a careful review of the record, including arguments and evidence not specifically addressed in this decision, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record. Even assuming that complainant established a prima facie case, complainant has not shown that the agency's explanations for its actions were mere pretext to hide unlawful discrimination. Further, complainant did not establish by a preponderance of the evidence that the agency's actions were motivated by discriminatory animus. We discern no basis to disturb the AJ's decision. The agency decision finding no discrimination 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 26, 2006 __________________ Date	[ "Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001)", "510 U.S. 17", "477 U.S. 57", "340 U.S. 474", "456 U.S. 273", "29 C.F.R. § 1614.405(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" ]	[ -0.07222548127174377, 0.03542947769165039, 0.04153040423989296, 0.08544965833425522, 0.05465858057141304, -0.0008003327529877424, 0.05124509334564209, -0.03384383022785187, -0.027880091220140457, 0.07766667753458023, 0.054898522794246674, -0.024128345772624016, -0.0750923678278923, 0.00081...
40	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a01182.txt	01a01182.txt	TXT	text/plain	13,475	Frank T. Smith v. Department of Veterans Affairs 01A01182 October 11, 2000 . Frank T. Smith, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.	October 11, 2000	Appeal Number: 01A01182 Complaint Allegations: In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when: he was harassed when he requested emergency leave on June 12, 1998; he was admonished and sent for a blood test when he complained of the treatment he received when he called to request leave on June 12, 1998; and he was denied leave on June 12, 1998.<2> Case Facts: Frank T. Smith (complainant) filed a timely appeal with this Commission from an agency's final decision (FAD) dated November 5, 1999, 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.<1> In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when: he was harassed when he requested emergency leave on June 12, 1998; he was admonished and sent for a blood test when he complained of the treatment he received when he called to request leave on June 12, 1998; and he was denied leave on June 12, 1998.<2> The agency dismissed the complaint pursuant to Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. Specifically, the agency noted that complainant did not contact an EEO Counselor until September 9, 1998, long past the 45-day time requirement. While complainant argued that the time requirements should be waived because he was advised by a union official/mediator to go through mediation and then file an EEO complaint if the mediation program did not resolve his concerns, the agency noted that the mediator referenced by complainant was a union official (UOM) and denied advising complainant to seek mediation. In response to this argument, the agency stated that complainant received training on the EEO process and had access to several bulletin boards throughout the facility which contained information about the EEO process. The agency concluded that complainant provided insufficient reasons for waiving the time period and therefore dismissed his complaint On appeal, complainant reiterates his argument that the 45-day time requirement should be waived due to the fact that he received misleading information from a union official. Complainant further notes that UOM was chosen by management to attend ADR training and to be the mediator in his case. Complainant further notes that he contacted the person assigned by the agency to oversee the ADR program and was led to believe that he had time to pursue the EEO process if mediation was unsuccessful.<3> In response, the agency reiterates that UOM denies giving complainant advice about the mediation process. Moreover, the agency notes that even if UOM did advise complainant to begin the mediation process and told him that he could subsequently file an EEO complaint, she did so in her capacity as a union official, and not as a member of agency management . The agency argues that the 45-day time period for contacting an EEO counselor is not tolled simply because a complainant elects to avail himself of another forum before contacting an EEO Counselor. 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 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 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 case at hand, the agency established that complainant received training on the EEO process and that posters explaining the EEO process were posted throughout the building. Thus, whether or not complainant was actually aware of the 45-day time limit, we find that the agency established that complainant had constructive knowledge of the time limit. See Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995). Complainant argues that he was misled into believing that he could file an EEO complaint after he completed the mediation process. The Commission has previously held that an 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 the complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 25, 1996); see also Elijah v. Department of the Army, EEOC Request No. 05950632 (March 28, 1996) (if agency officials misled appellant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). However, even assuming that UOM told complainant that he could file an EEO complaint if he was not satisfied with the outcome of the mediation process, a contention UOM denies, the agency maintains that UOM acted in her capacity as a union official, and not as a management representative. The statement submitted by UOM supports this contention, as she denied being a mediator at the time in question and indicated that she was acting as Union Representative. The fact that complainant received incorrect information from a union representative, even if that representative was not his chosen representative, does not establish that he was misled by an agency action. The Commission has consistently held that a complainant satisfies the criterion of EEO 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 Cox v. Department of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). Here, although complainant satisfied the first of these requirement by contacting the Employee Relations Specialist assigned by the agency to oversee the ADR Program on July 17, 1998, he submitted no evidence that he exhibited an intent to begin the EEO process at this point. Indeed, the record reveals that complainant contacted the agency's mediation coordinator in an attempt to resolve his concerns at the lowest level and planned to initiate the EEO process only if he was not satisfied with the results of the mediation. This does not suffice to exhibit an intent to begin the EEO process. See, e.g., Winslow v. Department of Treasury, EEOC Request No. 05931193 (June 10, 1994) (complainant who contacted the Administrative Judge (AJ) with jurisdiction over his pending complaints in an attempt to join new allegations to those complaints, was not seeking EEO counseling when he wrote letters to the AJ and therefore cannot use the date of those letters as the date of EEO Counselor contact).	Frank T. Smith v. Department of Veterans Affairs 01A01182 October 11, 2000 . Frank T. Smith, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A01182 Agency No. 2004-0637-98219 DECISION Frank T. Smith (complainant) filed a timely appeal with this Commission from an agency's final decision (FAD) dated November 5, 1999, 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.<1> In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when: he was harassed when he requested emergency leave on June 12, 1998; he was admonished and sent for a blood test when he complained of the treatment he received when he called to request leave on June 12, 1998; and he was denied leave on June 12, 1998.<2> The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. Specifically, the agency noted that complainant did not contact an EEO Counselor until September 9, 1998, long past the 45-day time requirement. While complainant argued that the time requirements should be waived because he was advised by a union official/mediator to go through mediation and then file an EEO complaint if the mediation program did not resolve his concerns, the agency noted that the mediator referenced by complainant was a union official (UOM) and denied advising complainant to seek mediation. In response to this argument, the agency stated that complainant received training on the EEO process and had access to several bulletin boards throughout the facility which contained information about the EEO process. The agency concluded that complainant provided insufficient reasons for waiving the time period and therefore dismissed his complaint On appeal, complainant reiterates his argument that the 45-day time requirement should be waived due to the fact that he received misleading information from a union official. Complainant further notes that UOM was chosen by management to attend ADR training and to be the mediator in his case. Complainant further notes that he contacted the person assigned by the agency to oversee the ADR program and was led to believe that he had time to pursue the EEO process if mediation was unsuccessful.<3> In response, the agency reiterates that UOM denies giving complainant advice about the mediation process. Moreover, the agency notes that even if UOM did advise complainant to begin the mediation process and told him that he could subsequently file an EEO complaint, she did so in her capacity as a union official, and not as a member of agency management . The agency argues that the 45-day time period for contacting an EEO counselor is not tolled simply because a complainant elects to avail himself of another forum before contacting an EEO Counselor. 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 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 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 case at hand, the agency established that complainant received training on the EEO process and that posters explaining the EEO process were posted throughout the building. Thus, whether or not complainant was actually aware of the 45-day time limit, we find that the agency established that complainant had constructive knowledge of the time limit. See Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995). Complainant argues that he was misled into believing that he could file an EEO complaint after he completed the mediation process. The Commission has previously held that an 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 the complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 25, 1996); see also Elijah v. Department of the Army, EEOC Request No. 05950632 (March 28, 1996) (if agency officials misled appellant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). However, even assuming that UOM told complainant that he could file an EEO complaint if he was not satisfied with the outcome of the mediation process, a contention UOM denies, the agency maintains that UOM acted in her capacity as a union official, and not as a management representative. The statement submitted by UOM supports this contention, as she denied being a mediator at the time in question and indicated that she was acting as Union Representative. The fact that complainant received incorrect information from a union representative, even if that representative was not his chosen representative, does not establish that he was misled by an agency action. The Commission has consistently held that a complainant satisfies the criterion of EEO 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 Cox v. Department of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). Here, although complainant satisfied the first of these requirement by contacting the Employee Relations Specialist assigned by the agency to oversee the ADR Program on July 17, 1998, he submitted no evidence that he exhibited an intent to begin the EEO process at this point. Indeed, the record reveals that complainant contacted the agency's mediation coordinator in an attempt to resolve his concerns at the lowest level and planned to initiate the EEO process only if he was not satisfied with the results of the mediation. This does not suffice to exhibit an intent to begin the EEO process. See, e.g., Winslow v. Department of Treasury, EEOC Request No. 05931193 (June 10, 1994) (complainant who contacted the Administrative Judge (AJ) with jurisdiction over his pending complaints in an attempt to join new allegations to those complaints, was not seeking EEO counseling when he wrote letters to the AJ and therefore cannot use the date of those letters as the date of EEO Counselor contact). Accordingly, after a careful review of the record, including complainant's arguments on appeal, the agency's response and arguments and evidence not specifically addressed in this decision, we find that the agency properly dismissed the complaint and hereby AFFIRM the FAD.<4> 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 October 11, 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. 2 The formal complaint does not give a detailed account of the events of June 12, 1998, instead simply listing admonishment, harassment and time and attendance as the issues. The formulation of the claims used in this decision is based on other information in the record. 3 Complainant contends that he has two other complaints pending before the agency, of which this complaint is the foundation, and that the agency therefore improperly dismissed a portion of his complaint. We note, however, that the subject complaint contained only the three allegations noted above. Complainant provided no explanation of how his complaints are related and a review of the Commission's records reveals that complainant has no other appeals currently pending. Accordingly, we will issue a decision on the subject appeal at this time. We remind the agency that in investigating any later complaints of complainant, any allegations dismissed as untimely must be considered as background evidence. See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999). 4 We note that under the revised 29 C.F.R. § 1614 regulations, the agency is required to establish or make available an alternative dispute resolution (ADR) program. See 29 C.F.R. § 1614.102(b)(2). If the agency's ADR program allows aggrieved individuals to go directly into the ADR process without first meeting with the EEO Counselor, the meeting with the agency's ADR contact person will serve as the meeting with the Counselor. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), as revised, November 9, 1999, at 3-7.	[ "Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995)", "Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 25, 1996)", "Elijah v. Department of the Army, EEOC Request No. 05950632 (March 28, 1996)", "Cox v. Department of Housing and Urban Development, EE...	[ -0.027362553402781487, 0.1123180240392685, -0.03780616074800491, 0.07144293934106827, 0.023000022396445274, 0.1369161158800125, 0.01428275741636753, -0.024763861671090126, -0.015264942310750484, 0.0187849011272192, -0.004377727396786213, 0.00667307386174798, -0.03394610062241554, 0.0240209...
41	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a04139.txt	01a04139.txt	TXT	text/plain	12,579	Raymond Crowther v. Department of Veterans Affairs 01A04139 September 13, 2000 . Raymond Crowther, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.	September 13, 2000	Appeal Number: 01A04139 Complaint Allegations: In his complaint, complainant alleged that he was subjected to discrimination on the bases of his race (Black) and disability (pneumonia) when he was terminated in June or July 1994. Case Facts: Raymond Crowther (complainant) filed a timely appeal with this Commission from a final agency decision (FAD) dated April 25, 2000, 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.<1> The appeal is accepted pursuant to 29 C.F.R. § 1614.405. In his complaint, complainant alleged that he was subjected to discrimination on the bases of his race (Black) and disability (pneumonia) when he was terminated in June or July 1994. The agency dismissed the complaint pursuant to Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for failing to initiate contact with an EEO Counselor within the applicable 45-day time period established by 29 C.F.R. § 1614.105(a)(1). The agency noted that complainant did not contact an EEO Counselor until September 14, 1999, more than five years after he was terminated. In considering complainant's argument that he failed to timely initiate contact because he was unaware of the EEO process, the agency found that complainant had constructive knowledge of the 45-day time period. Specifically, the personnel officer during the time in question at the facility where complainant worked noted that all new employees were required to attend an orientation program that included information about the EEO process and that this requirement was in place during 1994. The personnel officer also noted that even if complainant did not attend this orientation, as he alleged, he should have been aware of the time limits based on the facility's EEO bulletin boards which existed at the time in question and contained EEO posters with the relevant information. The agency also noted that although complainant was incarcerated at certain periods between his termination and his EEO contact, he states in his complaint that he attempted to obtain another job with the federal government for three years after his termination. From this, the agency concluded that complainant was not incarcerated until at least three years after his termination and therefore would not have been prevented from contacting an EEO Counselor due to incarceration, even assuming incarceration was a valid justification for delayed contact. On appeal, complainant reiterates that he contacted an EEO Counselor as soon as he became aware of the EEO process, during his incarceration. He notes that he never claimed it was his incarceration that prevented timely contact, but rather his ignorance of the process. He also states that he did not attend the orientation program and that he was sure that the information on the EEO posters would have been helpful to him had it been explained when he was a new employee. He states that the letters he wrote to various EEO offices in 1999 requesting information about the EEO process support his claim that he was not aware of the process until 1999. After a careful review of the record, we find that the agency correctly dismissed this complaint. 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 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). "The time period is triggered as soon as a complainant suspects discrimination and the complainant may not wait until all supporting facts have become apparent." Whalen v. Department of Justice, EEOC Request No. 05960147 (September 18, 1997). The Commission has consistently held that where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Williams V. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the instant complaint, the agency has not met this burden because it provided insufficient evidence to establish that complainant was aware, or should have been aware, of the 45-day time limit. The FAD asserts that the facility in question required all new employees to attend an orientation program which discussed EEO issues and that bulletin boards near complainant's work area provided information on EEO Counselors. In making this claim, the agency relied on a letter from a personnel officer which states that orientation was provided and included several pertinent local topics including EEO... and that the bulletin boards included information on EEO Counselors complete with names, departments, and contact phone numbers. We note, however, that the record does not contain affidavits attesting to these facts or copies of EEO posters that were posted at the time. Moreover, no where in this letter does the personnel officer state that the orientation and/or the bulletin board information included information on time frames. Final Decision: Accordingly, while 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 responsibilities under Title VII, we find that the agency has failed to establish that it met this obligation. See Thomas 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). Nevertheless, the Commission recognizes that complainant waited more than five years to raise his allegation with an EEO Counselor. We have consistently held that complainants must act with due diligence in the pursuit of their claims and that failure to do so may result in dismissal of the claims under the doctrine of laches. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); see also, Office of Federal Operations' decisions Thomas v. Department of the Treasury, EEOC Appeal No. 01A00891 (August 23, 2000) (complaint dismissed for failure to act with due diligence where complainant failed to contact an EEO Counselor until more than five years after the allegedly discriminatory incident); Firouzi v. United States Information Agency, EEOC Appeal No. 01992279 (May 5, 2000) (agency failed to provide sufficient evidence to support application of constructive notice rule, but complaint still dismissed for failure to act with due diligence where complainant failed to contact an EEO Counselor until almost twenty years after the allegedly discriminatory incidents); Kane v. Air Force, EEOC Appeal No. 01956766 (August 19, 1996) (complaint dismissed for failure to act with due diligence, despite the fact that the agency may have mislead complainant concerning his EEO rights, where complainant contacted an EEO Counselor more than five years from the date of the allegedly discriminatory incident and from the date he received the allegedly misleading information). In the case at hand, complainant argues that he was not aware of the existence of the EEO process until five years after his termination and that he therefore did not attempt to challenge his termination until that point. However, while the agency did not provide sufficient evidence to establish that complainant should have been aware of the time requirements for contacting an EEO Counselor, it did establish that information concerning the EEO process in general was posted throughout the facility, including on a bulletin board in close proximity to complainant's work area. As there was therefore information available to complainant as to who he could contact to discuss his termination, his failure to make any efforts to do so until more than five years after his termination establishes that he did not pursue his claim with due diligence. Accordingly, the complaint was properly dismissed by the agency and the FAD is AFFIRMED.	Raymond Crowther v. Department of Veterans Affairs 01A04139 September 13, 2000 . Raymond Crowther, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A04139 Agency No. 994822 DECISION Raymond Crowther (complainant) filed a timely appeal with this Commission from a final agency decision (FAD) dated April 25, 2000, 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.<1> The appeal is accepted pursuant to 29 C.F.R. § 1614.405. In his complaint, complainant alleged that he was subjected to discrimination on the bases of his race (Black) and disability (pneumonia) when he was terminated in June or July 1994. The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for failing to initiate contact with an EEO Counselor within the applicable 45-day time period established by 29 C.F.R. § 1614.105(a)(1). The agency noted that complainant did not contact an EEO Counselor until September 14, 1999, more than five years after he was terminated. In considering complainant's argument that he failed to timely initiate contact because he was unaware of the EEO process, the agency found that complainant had constructive knowledge of the 45-day time period. Specifically, the personnel officer during the time in question at the facility where complainant worked noted that all new employees were required to attend an orientation program that included information about the EEO process and that this requirement was in place during 1994. The personnel officer also noted that even if complainant did not attend this orientation, as he alleged, he should have been aware of the time limits based on the facility's EEO bulletin boards which existed at the time in question and contained EEO posters with the relevant information. The agency also noted that although complainant was incarcerated at certain periods between his termination and his EEO contact, he states in his complaint that he attempted to obtain another job with the federal government for three years after his termination. From this, the agency concluded that complainant was not incarcerated until at least three years after his termination and therefore would not have been prevented from contacting an EEO Counselor due to incarceration, even assuming incarceration was a valid justification for delayed contact. On appeal, complainant reiterates that he contacted an EEO Counselor as soon as he became aware of the EEO process, during his incarceration. He notes that he never claimed it was his incarceration that prevented timely contact, but rather his ignorance of the process. He also states that he did not attend the orientation program and that he was sure that the information on the EEO posters would have been helpful to him had it been explained when he was a new employee. He states that the letters he wrote to various EEO offices in 1999 requesting information about the EEO process support his claim that he was not aware of the process until 1999. After a careful review of the record, we find that the agency correctly dismissed this complaint. 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 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). "The time period is triggered as soon as a complainant suspects discrimination and the complainant may not wait until all supporting facts have become apparent." Whalen v. Department of Justice, EEOC Request No. 05960147 (September 18, 1997). The Commission has consistently held that where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Williams V. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the instant complaint, the agency has not met this burden because it provided insufficient evidence to establish that complainant was aware, or should have been aware, of the 45-day time limit. The FAD asserts that the facility in question required all new employees to attend an orientation program which discussed EEO issues and that bulletin boards near complainant's work area provided information on EEO Counselors. In making this claim, the agency relied on a letter from a personnel officer which states that orientation was provided and included several pertinent local topics including EEO... and that the bulletin boards included information on EEO Counselors complete with names, departments, and contact phone numbers. We note, however, that the record does not contain affidavits attesting to these facts or copies of EEO posters that were posted at the time. Moreover, no where in this letter does the personnel officer state that the orientation and/or the bulletin board information included information on time frames. Accordingly, while 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 responsibilities under Title VII, we find that the agency has failed to establish that it met this obligation. See Thomas 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). Nevertheless, the Commission recognizes that complainant waited more than five years to raise his allegation with an EEO Counselor. We have consistently held that complainants must act with due diligence in the pursuit of their claims and that failure to do so may result in dismissal of the claims under the doctrine of laches. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990); see also, Office of Federal Operations' decisions Thomas v. Department of the Treasury, EEOC Appeal No. 01A00891 (August 23, 2000) (complaint dismissed for failure to act with due diligence where complainant failed to contact an EEO Counselor until more than five years after the allegedly discriminatory incident); Firouzi v. United States Information Agency, EEOC Appeal No. 01992279 (May 5, 2000) (agency failed to provide sufficient evidence to support application of constructive notice rule, but complaint still dismissed for failure to act with due diligence where complainant failed to contact an EEO Counselor until almost twenty years after the allegedly discriminatory incidents); Kane v. Air Force, EEOC Appeal No. 01956766 (August 19, 1996) (complaint dismissed for failure to act with due diligence, despite the fact that the agency may have mislead complainant concerning his EEO rights, where complainant contacted an EEO Counselor more than five years from the date of the allegedly discriminatory incident and from the date he received the allegedly misleading information). In the case at hand, complainant argues that he was not aware of the existence of the EEO process until five years after his termination and that he therefore did not attempt to challenge his termination until that point. However, while the agency did not provide sufficient evidence to establish that complainant should have been aware of the time requirements for contacting an EEO Counselor, it did establish that information concerning the EEO process in general was posted throughout the facility, including on a bulletin board in close proximity to complainant's work area. As there was therefore information available to complainant as to who he could contact to discuss his termination, his failure to make any efforts to do so until more than five years after his termination establishes that he did not pursue his claim with due diligence. Accordingly, the complaint was properly dismissed by the agency and the FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0800) 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). 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 September 13, 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 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.	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Whalen v. Department of Justice, EEOC Request No. 05960147 (September 18, 1997)", "Thomas v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)", "Pride v. United States Postal Service, EEOC Request No. 059...	[ -0.03284493088722229, 0.009149009361863136, -0.07254333049058914, 0.0049561080522835255, 0.020692933350801468, 0.11550259590148926, 0.0051313769072294235, -0.0366392508149147, -0.027096739038825035, -0.023128457367420197, 0.040000393986701965, 0.01061565987765789, 0.0036656102165579796, 0....
42	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A03973_r.txt	01A03973_r.txt	TXT	text/plain	11,724	Dorothy Lewis v. General Services Administration 01A03973 July 6, 2001 . Dorothy Lewis, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.	July 6, 2001	Appeal Number: 01A03973 Legal Analysis: The Commission accepts the appeal in accordance with 29 C.F.R. §1614.405. On August 27, 1999, complainant filed two complaints<1> claiming she suffered discrimination based on race, color and age. In Case No. 99R3FSSDL10 (hereinafter referred to as L10"), complainant claimed that on August 10, 1987, a younger, white female was chosen for the position listed under vacancy number R3P-87-233. In Case No. 99R3FSSDL11 (hereinafter referred to as L11"), complainant claims that on or about March 11, 1992, she was constructively discharged. Further, she claims she was harassed in reprisal for filing a complaint in 1987, which was never properly investigated. The agency issued a decision, on March 24, 2000, dismissing the complaints for untimeliness and for failure to state a claim. Regarding Case No. L10, the agency determined that following the non-selection, complainant contacted the EEO office; that complaint procedures were explained to her; and that instead of utilizing the EEO process, complainant asked the EEO officer to speak with her supervisor about a reassignment. The agency noted that the reassignment did not occur, but that thereafter complainant was selected for a position in Lima, Pennsylvania. The agency stated that it was not until February 1993, after returning from Pennsylvania, that complainant asserted that her complaint had not been processed. According to the agency, complainant had not pursued the EEO process, as a formal complaint had not been not filed on the non-selection. In addition, Case No. L10 was dismissed for failure to state a claim. The agency found that because the claim concerned a non-selection for a job at a lower grade and pay than complainant's subsequent position, she had not sustained a harm or loss. Similarly, Case No. L11 was dismissed for untimeliness. The agency stated that the complaint referred to documents sent to the EEO office in February 1993. Regarding the February documents, the agency indicated that on July 23, 1993, it notified complainant that it was unable to determine what complainant was seeking. According to the agency, the complainant's only response was in January 1994, when her husband called the EEO office and demanded complaint forms. Moreover, the agency determined that the alleged event occurred on October 6, 1992, but that complainant's initial contact was not until February 23, 1993, beyond the time limit. Therefore, the agency contends that [t]he present claim is an attempt to maintain an action on a matter which, if it had been clearly articulated and pursued after it was first raised more than seven years ago, would have been dismissed as untimely. On appeal, complainant argues that she timely contacted the EEO office after the August 10, 1987 nonselection, but that her letter was ignored. Complainant argues that she was only contacted after she was selected for a transfer, and told that accepting the transfer would terminate her claim. According to complainant, following her return in 1991, she contacted the Counselor regarding discriminatory treatment, but a final interview was never completed. Complainant argues that on October 6, 1992, she retired because of the hostile work environment. Complainant further argues that she did not reach the EEO office regarding the alleged discrimination because of her prior experience with the process and mental health problems; but that in February 1993, she decided to contact the Counselor. Complainant argues that it was not until July 23, 1993, that the agency responded to her letter, and she contends that no inquiry was made as to why she delayed in contacting the office. Complainant argues that it was only after the intervention of an EEOC Administrative Judge (AJ) that she was able to file the instant complaints on August 27, 1999. As an initial matter, the Commission finds that there is a conflict of interest with regard to the agency decision. The decision was issued under the signature line of Regional EEO Officer and contains repeated first person references. For example, the decision states that the Agency file created by me at that time contains a letter similar to [complainant's]... and [complainant] asked me to talk ... with her second-line supervisor (emphasis added). In addition, much of the correspondence exchanged between the agency and complainant was directed to, or written by, the individual who wrote the agency decision. That same individual is also named in some documents as complainant's EEO Counselor. It is important that EEO officials have the confidence of the agency and its employees. Therefore, EEO counselors, EEO investigators, EEO officers, and EEO program managers cannot serve as representatives for agencies or complainants, because to do so would be inconsistent with their neutral roles. See the EEOC Management Directive for 29 C.F.R. Part 1614, EEOC MD-110, at page 1-3 (November 9, 1999). In this case, it appears as if complainant's EEO Counselor issued the agency decision that dismissed complainant's complaint. The agency is advised to avoid such conflicts in the future by issuing decisions with impartial agency officials. However, having the present record before us, we will address the agency's dismissal of the complaint. The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claim or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to diligently pursue their legal remedies can bar their claims. Id. We find that the doctrine of laches is applicable in the instant cases. With respect to Case L10, although complainant may have contacted the EEO office following her non-selection, it does not appear that she did so with the intent to pursue the EEO process. Complainant argues that the EEO Counselor ignored her letter and never contacted her. However, she admits that she did not contact the EEO office again until 1991. Regarding Case L11, complainant admits that her February 1993 contact was untimely, but argues that she had health problems and was dissuaded based on her prior EEO experience. After the agency responded to her letter, on July 23, 1993, complainant did not contact the EEO office again until 1994. At that time, her husband called the EEO Counselor to obtain complaint forms. Therefore, we find that in both cases, complainant failed to contact the EEO office within forty-five days of the incidents, with an intent to pursue the EEO process. Following her initial contact, complainant let years pass before again writing or calling the EEO office. Therefore, we find that complainant has failed to diligently pursue matters that occurred approximately thirteen and eight years ago, respectively. Because of our disposition we do not address whether Case L10 was properly dismissed for failure to state a claim. Final Decision: Accordingly, the agency's dismissal of the complaints was proper and is hereby AFFIRMED.	Dorothy Lewis v. General Services Administration 01A03973 July 6, 2001 . Dorothy Lewis, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency. Appeal No. 01A03973 Agency Nos. 99R3FSSDL10 99R3FSSDL11 DECISION On April 24, 2000, complainant filed a timely appeal with this Commission from an agency decision regarding her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. §1614.405. On August 27, 1999, complainant filed two complaints<1> claiming she suffered discrimination based on race, color and age. In Case No. 99R3FSSDL10 (hereinafter referred to as L10"), complainant claimed that on August 10, 1987, a younger, white female was chosen for the position listed under vacancy number R3P-87-233. In Case No. 99R3FSSDL11 (hereinafter referred to as L11"), complainant claims that on or about March 11, 1992, she was constructively discharged. Further, she claims she was harassed in reprisal for filing a complaint in 1987, which was never properly investigated. The agency issued a decision, on March 24, 2000, dismissing the complaints for untimeliness and for failure to state a claim. Regarding Case No. L10, the agency determined that following the non-selection, complainant contacted the EEO office; that complaint procedures were explained to her; and that instead of utilizing the EEO process, complainant asked the EEO officer to speak with her supervisor about a reassignment. The agency noted that the reassignment did not occur, but that thereafter complainant was selected for a position in Lima, Pennsylvania. The agency stated that it was not until February 1993, after returning from Pennsylvania, that complainant asserted that her complaint had not been processed. According to the agency, complainant had not pursued the EEO process, as a formal complaint had not been not filed on the non-selection. In addition, Case No. L10 was dismissed for failure to state a claim. The agency found that because the claim concerned a non-selection for a job at a lower grade and pay than complainant's subsequent position, she had not sustained a harm or loss. Similarly, Case No. L11 was dismissed for untimeliness. The agency stated that the complaint referred to documents sent to the EEO office in February 1993. Regarding the February documents, the agency indicated that on July 23, 1993, it notified complainant that it was unable to determine what complainant was seeking. According to the agency, the complainant's only response was in January 1994, when her husband called the EEO office and demanded complaint forms. Moreover, the agency determined that the alleged event occurred on October 6, 1992, but that complainant's initial contact was not until February 23, 1993, beyond the time limit. Therefore, the agency contends that [t]he present claim is an attempt to maintain an action on a matter which, if it had been clearly articulated and pursued after it was first raised more than seven years ago, would have been dismissed as untimely. On appeal, complainant argues that she timely contacted the EEO office after the August 10, 1987 nonselection, but that her letter was ignored. Complainant argues that she was only contacted after she was selected for a transfer, and told that accepting the transfer would terminate her claim. According to complainant, following her return in 1991, she contacted the Counselor regarding discriminatory treatment, but a final interview was never completed. Complainant argues that on October 6, 1992, she retired because of the hostile work environment. Complainant further argues that she did not reach the EEO office regarding the alleged discrimination because of her prior experience with the process and mental health problems; but that in February 1993, she decided to contact the Counselor. Complainant argues that it was not until July 23, 1993, that the agency responded to her letter, and she contends that no inquiry was made as to why she delayed in contacting the office. Complainant argues that it was only after the intervention of an EEOC Administrative Judge (AJ) that she was able to file the instant complaints on August 27, 1999. As an initial matter, the Commission finds that there is a conflict of interest with regard to the agency decision. The decision was issued under the signature line of Regional EEO Officer and contains repeated first person references. For example, the decision states that the Agency file created by me at that time contains a letter similar to [complainant's]... and [complainant] asked me to talk ... with her second-line supervisor (emphasis added). In addition, much of the correspondence exchanged between the agency and complainant was directed to, or written by, the individual who wrote the agency decision. That same individual is also named in some documents as complainant's EEO Counselor. It is important that EEO officials have the confidence of the agency and its employees. Therefore, EEO counselors, EEO investigators, EEO officers, and EEO program managers cannot serve as representatives for agencies or complainants, because to do so would be inconsistent with their neutral roles. See the EEOC Management Directive for 29 C.F.R. Part 1614, EEOC MD-110, at page 1-3 (November 9, 1999). In this case, it appears as if complainant's EEO Counselor issued the agency decision that dismissed complainant's complaint. The agency is advised to avoid such conflicts in the future by issuing decisions with impartial agency officials. However, having the present record before us, we will address the agency's dismissal of the complaint. The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claim or the doctrine of laches may be applied. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to diligently pursue their legal remedies can bar their claims. Id. We find that the doctrine of laches is applicable in the instant cases. With respect to Case L10, although complainant may have contacted the EEO office following her non-selection, it does not appear that she did so with the intent to pursue the EEO process. Complainant argues that the EEO Counselor ignored her letter and never contacted her. However, she admits that she did not contact the EEO office again until 1991. Regarding Case L11, complainant admits that her February 1993 contact was untimely, but argues that she had health problems and was dissuaded based on her prior EEO experience. After the agency responded to her letter, on July 23, 1993, complainant did not contact the EEO office again until 1994. At that time, her husband called the EEO Counselor to obtain complaint forms. Therefore, we find that in both cases, complainant failed to contact the EEO office within forty-five days of the incidents, with an intent to pursue the EEO process. Following her initial contact, complainant let years pass before again writing or calling the EEO office. Therefore, we find that complainant has failed to diligently pursue matters that occurred approximately thirteen and eight years ago, respectively. Because of our disposition we do not address whether Case L10 was properly dismissed for failure to state a claim. Accordingly, the agency's dismissal of the complaints was proper and is hereby 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 July 6, 2001 __________________ Date 1In a letter dated September 24, 1999, complainant's attorney was notified by the agency that the two complaints would be consolidated for joint processing.	[ "Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990)", "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" ]	[ -0.08251728117465973, 0.056115418672561646, -0.08704525232315063, 0.0746685042977333, 0.00797048956155777, 0.1001279205083847, 0.011079708114266396, -0.021460670977830887, -0.062051668763160706, 0.004641090519726276, -0.012414146214723587, -0.01910345070064068, 0.01700872927904129, 0.02168...
43	https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020003471.pdf	2020003471.pdf	PDF	application/pdf	17,815	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.	February 11, 2020	Appeal Number: 2020003471 Background: During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint.	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003471 Agency No. 2004-0558-2020100463 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 11, 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. BACKGROUND During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. ANALYSIS AND FI NDINGS As an initial matter, we do not find that Complainant refused to participate in EEO Counseling. The record reflects that Complainant initiated EEO contact with an intent to pursue the EEO process. In an email to the Agency dated October 23, 2019, Complainant states that she initiated an EEO Counseling request on October 4, 2019 but did not receive a response. An EEO Counselor responded on October 25, 2019 via email and asked if Complainant s till wished to pursue a complaint. Complainant responde d that same day that she was still seeking EEO service. On October 29, 2019, another EEO Counselor (E2) sent an email to Complainant informing her that he attached a package with Complainant’s rights and responsibilities regarding the informal EEO process. Complainant responded via email on November 4, 2019 requesting that the EEO Counselor not use e -mail/electronic service related to EEO correspondence. Complainant assert ed that she could read the attachment but not print it and requested the inf ormation be sent to her mailing address. E2 subsequently sent Complainant’s Notice of Right s on the informal process to her mailing address on November 5, 2019. 2 According to the EEO Counselor’s Report, E2 stated he attempted to contact Complainant Novem ber 5 -November 7, 2017 via phone. Complainant, on appeal, asserts that she was traveling during this period and was unable to use her phone. On November 20, 2019, E2 sent Complainant the Notice of Right to File a Formal Complaint, which 2 The record reflects that the Notice of Rights and Responsibilities was delivered at Complainant’s address on November 14, 2019. Complainant filed on December 7, 2019. Based on the se circumstances , we do not find that Complainant refused to participate in the EEO process. Non- Selection Claim for Medical Support Assistant Position The Agency improperly dismissed Complainant’s non-selection claim (for the position of Medical Support Assistant for which she applied in May 2019) on the grounds that Complainant did not raise this matter to an EEO Counselor . EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint. Accordingly, to the extent Complainant is alleging problems with the processing of her prior EEO complaints, we AFFIRM the Agency’s dismissal of these matters for the reason set forth herein . However, to the ext ent Complainant is alleging that she was not selected for the Medical Support Assistant position that she applied for in May 2019, we REVERSE the Agency’s final decision dismissing th is matter and we REMAND this matter to the Agency for further processing in accordance with the O RDER below. ORDER (E0618) 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the inves tigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election pe riod. 3 Commission records reflect that the Commission’s Office of Federal Operations issued a decision on this matter implementing a n AJ’s decision without a hearing finding no discrimination. EEOC Appeal No. 0120172918 (Oct. 25, 2018). 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, t he 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 Commiss ion’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. Failure by an agency to either file a compliance report or implement an y 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 RECONSIDER ATION (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 c learly 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 w ith 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 appl icable 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 wi th 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 affi rms 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 ninet y (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 alternativ e, 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 fil e 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 administrat ive 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 cour t, 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 spe cific time limits). FOR THE COMMISSION: ___________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 17, 2020 Date	[ "Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990)", "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. § 1614.503(f)", "29 C.F.R. § 16...	[ -0.13655951619148254, 0.07939241826534271, 0.02501421608030796, -0.02054384909570217, 0.017659835517406464, 0.03012469969689846, 0.02618934027850628, 0.013424832373857498, -0.009746560826897621, 0.055390819907188416, 0.03239957615733147, -0.035063520073890686, -0.04843492805957794, 0.02652...
44	https://www.eeoc.gov/sites/default/files/decisions/2021_01_25/2020003471.pdf	2020003471.pdf	PDF	application/pdf	17,815	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.	February 11, 2020	Appeal Number: 2020003471 Background: During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint.	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003471 Agency No. 2004-0558-2020100463 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 11, 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. BACKGROUND During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. ANALYSIS AND FI NDINGS As an initial matter, we do not find that Complainant refused to participate in EEO Counseling. The record reflects that Complainant initiated EEO contact with an intent to pursue the EEO process. In an email to the Agency dated October 23, 2019, Complainant states that she initiated an EEO Counseling request on October 4, 2019 but did not receive a response. An EEO Counselor responded on October 25, 2019 via email and asked if Complainant s till wished to pursue a complaint. Complainant responde d that same day that she was still seeking EEO service. On October 29, 2019, another EEO Counselor (E2) sent an email to Complainant informing her that he attached a package with Complainant’s rights and responsibilities regarding the informal EEO process. Complainant responded via email on November 4, 2019 requesting that the EEO Counselor not use e -mail/electronic service related to EEO correspondence. Complainant assert ed that she could read the attachment but not print it and requested the inf ormation be sent to her mailing address. E2 subsequently sent Complainant’s Notice of Right s on the informal process to her mailing address on November 5, 2019. 2 According to the EEO Counselor’s Report, E2 stated he attempted to contact Complainant Novem ber 5 -November 7, 2017 via phone. Complainant, on appeal, asserts that she was traveling during this period and was unable to use her phone. On November 20, 2019, E2 sent Complainant the Notice of Right to File a Formal Complaint, which 2 The record reflects that the Notice of Rights and Responsibilities was delivered at Complainant’s address on November 14, 2019. Complainant filed on December 7, 2019. Based on the se circumstances , we do not find that Complainant refused to participate in the EEO process. Non- Selection Claim for Medical Support Assistant Position The Agency improperly dismissed Complainant’s non-selection claim (for the position of Medical Support Assistant for which she applied in May 2019) on the grounds that Complainant did not raise this matter to an EEO Counselor . EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint. Accordingly, to the extent Complainant is alleging problems with the processing of her prior EEO complaints, we AFFIRM the Agency’s dismissal of these matters for the reason set forth herein . However, to the ext ent Complainant is alleging that she was not selected for the Medical Support Assistant position that she applied for in May 2019, we REVERSE the Agency’s final decision dismissing th is matter and we REMAND this matter to the Agency for further processing in accordance with the O RDER below. ORDER (E0618) 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the inves tigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election pe riod. 3 Commission records reflect that the Commission’s Office of Federal Operations issued a decision on this matter implementing a n AJ’s decision without a hearing finding no discrimination. EEOC Appeal No. 0120172918 (Oct. 25, 2018). 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, t he 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 Commiss ion’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. Failure by an agency to either file a compliance report or implement an y 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 RECONSIDER ATION (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 c learly 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 w ith 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 appl icable 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 wi th 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 affi rms 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 ninet y (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 alternativ e, 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 fil e 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 administrat ive 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 cour t, 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 spe cific time limits). FOR THE COMMISSION: ___________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 17, 2020 Date	[ "Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990)", "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. § 1614.503(f)", "29 C.F.R. § 16...	[ -0.13655951619148254, 0.07939241826534271, 0.02501421608030796, -0.02054384909570217, 0.017659835517406464, 0.03012469969689846, 0.02618934027850628, 0.013424832373857498, -0.009746560826897621, 0.055390819907188416, 0.03239957615733147, -0.035063520073890686, -0.04843492805957794, 0.02652...
45	https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020003471.pdf	2020003471.pdf	PDF	application/pdf	17,815	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.	February 11, 2020	Appeal Number: 2020003471 Background: During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint.	Tena C .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003471 Agency No. 2004-0558-2020100463 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 11, 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. BACKGROUND During the period at issue, Complainant w as a former Agency employee. On December 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity . In its final decision, dated February 11, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: “ Whether Complainant was discriminated against based on reprisal for prior EEO activity when on October 31, 2019 [a named human resources official] did not respond to her request for a status update on her application for the Medical Support Assistant position and on November 5, 2019, she was not selected for the position.” The Agency dismissed Complainant’s formal complaint reasoning , “[Complainant] did not participate furt her in the process until [ she] filed [h er] formal complaint in this matter on December 7, 2019.” The Agency found that Complainant therefore was not counseled on the matter set forth above or on any other issues presented in Complainant’s formal complaint. The Agency also noted that Complainant raised issues in the instant formal complaint that occurred during 2018, which she raised in a prior EEO complaint. The Agency reasoned that in October 2018, Complainant withdrew her prior EEO complaint and that “when [she] withdrew that complaint, [she] waived proceeding forward on any issues or events that [she] could have raised.” Finally, t he Agency s tated that Complain ant also raised issues dealing with another prior EEO complaint, Agency Case No. 2004- 0558- 2014102351, which w as adjudicated by the Commission’s Office of Federal Operations (OFO). The i nstant appeal followed. On appeal, Complainant asserts that her EEO Counseling was not “proper or [complete].” Complainant asserts that she received the Notice of Right to File a Formal Complaint several days after receipt of the counseling documents. Specifically, Complainant stated “I am requesting that my right to receive informal counseling be restored…to establish a proper alignment of the record because facts presented in the [final decision] are misstated and contain errors." In response, the Agency reasserts that Complainant did not participate in counseling after her initial contact. The Agency also asserts that Complainant fails to present a viable claim and thus the complaint should be dismissed for failure to state a claim. ANALYSIS AND FI NDINGS As an initial matter, we do not find that Complainant refused to participate in EEO Counseling. The record reflects that Complainant initiated EEO contact with an intent to pursue the EEO process. In an email to the Agency dated October 23, 2019, Complainant states that she initiated an EEO Counseling request on October 4, 2019 but did not receive a response. An EEO Counselor responded on October 25, 2019 via email and asked if Complainant s till wished to pursue a complaint. Complainant responde d that same day that she was still seeking EEO service. On October 29, 2019, another EEO Counselor (E2) sent an email to Complainant informing her that he attached a package with Complainant’s rights and responsibilities regarding the informal EEO process. Complainant responded via email on November 4, 2019 requesting that the EEO Counselor not use e -mail/electronic service related to EEO correspondence. Complainant assert ed that she could read the attachment but not print it and requested the inf ormation be sent to her mailing address. E2 subsequently sent Complainant’s Notice of Right s on the informal process to her mailing address on November 5, 2019. 2 According to the EEO Counselor’s Report, E2 stated he attempted to contact Complainant Novem ber 5 -November 7, 2017 via phone. Complainant, on appeal, asserts that she was traveling during this period and was unable to use her phone. On November 20, 2019, E2 sent Complainant the Notice of Right to File a Formal Complaint, which 2 The record reflects that the Notice of Rights and Responsibilities was delivered at Complainant’s address on November 14, 2019. Complainant filed on December 7, 2019. Based on the se circumstances , we do not find that Complainant refused to participate in the EEO process. Non- Selection Claim for Medical Support Assistant Position The Agency improperly dismissed Complainant’s non-selection claim (for the position of Medical Support Assistant for which she applied in May 2019) on the grounds that Complainant did not raise this matter to an EEO Counselor . EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim 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 for which a complainant has undergone EEO counseling . As set fo rth above, we find that Complainant did not refuse to participate in the counseling process. We further find that the issue of the non- selection was related to a matter on which Complainant raised during the EEO c ounseling period. The record contains a copy of the EEO Counselor’s Report, which provides, in pertinent part , that according to the Complainant’s initial contact form, she applied for a Medical Support Assistant position in May 2019 and the Agency failed to respond to her October 4, 2019 request for an update on the status her application. In an attachment to her formal complaint, Complainant asserts that after she initiated the instant EEO activity, she received notification of her non- selection. Thus, Complainant alleged that she had not received information regarding her application for the Medical Support Ass istant position when she initiated her instant EEO contact and during the Counseling period, she received notification of her non -selection for this position. Based on these circumstances, we f ind that the issue of the non- selection is related to a matter which Complainant had raised during the Counseling period. We further find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for pr ocessing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990). In the instant matter, complainant is alleging th at she was not selected for a position based on her prior protected activity; th us, she has set forth an actionable claim. Claims I nvolving the Processing of her Prior Complaints To the extent that Complainant is alleging issues with the processing of her prior complaints, we find that these matters are more properly analyzed as to whether Complainant is alleging dissatisfaction with the processing of her prior complaints (rather than a dismissal for raising the same matters in prior complaints. ). 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as “spin off” complaints, and they do not state an independent claim. Complainant in an attachment to her formal complaint alleges various issues with the processing of her prior EEO complaints. For example, Complainant states that in Agency Case No. 2004- 0558- 2014102531, the EEO Counselor submitted a n EEO Counselor’s Report which contained wrong dates and erroneous information.3 To the extent that Complainant is alleging her previous EEO complaints were improperly processed by the Agency , she should have raised any issues regarding the processing of her prior complaint s while th ose complaint s were being processed, not in a new complaint. Accordingly, to the extent Complainant is alleging problems with the processing of her prior EEO complaints, we AFFIRM the Agency’s dismissal of these matters for the reason set forth herein . However, to the ext ent Complainant is alleging that she was not selected for the Medical Support Assistant position that she applied for in May 2019, we REVERSE the Agency’s final decision dismissing th is matter and we REMAND this matter to the Agency for further processing in accordance with the O RDER below. ORDER (E0618) 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the inves tigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election pe riod. 3 Commission records reflect that the Commission’s Office of Federal Operations issued a decision on this matter implementing a n AJ’s decision without a hearing finding no discrimination. EEOC Appeal No. 0120172918 (Oct. 25, 2018). 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, t he 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 Commiss ion’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. Failure by an agency to either file a compliance report or implement an y 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 RECONSIDER ATION (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 c learly 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 w ith 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 appl icable 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 wi th 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 affi rms 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 ninet y (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 alternativ e, 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 fil e 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 administrat ive 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 cour t, 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 spe cific time limits). FOR THE COMMISSION: ___________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 17, 2020 Date	[ "Odoski v. Dep’t of Energy , EEOC Appeal No. 01901496 (April 16, 1990)", "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. § 1614.503(f)", "29 C.F.R. § 16...	[ -0.13655951619148254, 0.07939241826534271, 0.02501421608030796, -0.02054384909570217, 0.017659835517406464, 0.03012469969689846, 0.02618934027850628, 0.013424832373857498, -0.009746560826897621, 0.055390819907188416, 0.03239957615733147, -0.035063520073890686, -0.04843492805957794, 0.02652...
46	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a50194.txt	01a50194.txt	TXT	text/plain	7,366	Smith, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.	January 26, 2005	Appeal Number: 01A50194 Case Facts: Legal Analysis: Upon review, the Commission finds claim (2) of the instant complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. On March 8, 2004, complainant initiated contact with an EEO Counselor, claiming that she was subjected to discrimination on the bases of sex, age, and in reprisal for prior EEO activity when: 1. Complainant only received a Retirement Certificate, and did not get a monetary award or any other form of special recognition when she retired on January 31, 2004. 2. Management did not give her the proper recognition or proper pay for her service as an EEO Officer, GS-0260-12 for the period June 1, 1998 through June 6, 1999. Informal efforts to resolve the matter were not successful. On June 4, 2004, complainant filed a formal complaint, comprised of the two claims identified above. On July 12, 2004, the agency dismissed claim (2) on the grounds of untimely EEO Counselor contact. However, the agency accepted claim (1) for investigation. The agency notified complainant that the dismissed portion (claim (2)) would not be investigated and is not appealable to the Commission until final action is taken on the remainder of the complaint. On August 31, 2004, prior to the investigation of the accepted claim (1), complainant and the agency settled that claim pursuant to the terms of the settlement agreement and complainant reserved her right to appeal the dismissal of claim (2). On September 24, 2004, complainant filed this appeal to the Commission. As claim (2) is the sole viable claim remaining in the instant complaint, it is properly before the Commission. The record in this case contains a letter to the agency dated July 17, 2004, wherein complainant argued that in late June 1999, when she became aware that she had not been considered or selected for the GS-13 EEO Officer position, she initiated contact with an EEO Director, U.S. Army Material Command. Complainant claimed that she discussed the possibility of her filing an EEO complaint. Complainant claimed that the EEO Director contacted some EEO Counselors and secured someone who could provide her with EEO counseling. Complainant stated that, in the meantime, she was searching for a representative but that before she met with an EEO Counselor, she was selected for a the position at the 254th Base Support Battalion and she had to prepare to move overseas. The record also contains an August 26, 2004 response, wherein the agency stated that in regard to complainant's claim of an earlier EEO Counselor contact in June 1999, the agency EEO Office has confirmed that there is no record or any other documentation to support that assertion. The Commission determines that the agency's dismissal of claim (2) of complainant's complaint was proper. Complainant did not initiate EEO Counselor contact regarding claim (2) (which occurred occurred between May 1998 and June 1999), until March 8, 2004, which is beyond the forty-five (45) day limitation period. Regarding complainant's argument that she initiated EEO Counselor contact in June 1999, and not in March 2004, the Commission determines that to the extent that complainant may have timely contacted an EEO Counselor in June 1999, she has in effect abandoned pursuit of that matter until again raising the issue in March 2004. 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 claim (2) of the instant complaint is AFFIRMED.	June C. Fratus-Smith v. Department of the Army 01A50194 January 26, 2005 . June C. Fratus-Smith, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A50194 Agency No. ARREGNE04JUN0001 DECISION Upon review, the Commission finds claim (2) of the instant complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. On March 8, 2004, complainant initiated contact with an EEO Counselor, claiming that she was subjected to discrimination on the bases of sex, age, and in reprisal for prior EEO activity when: 1. Complainant only received a Retirement Certificate, and did not get a monetary award or any other form of special recognition when she retired on January 31, 2004. 2. Management did not give her the proper recognition or proper pay for her service as an EEO Officer, GS-0260-12 for the period June 1, 1998 through June 6, 1999. Informal efforts to resolve the matter were not successful. On June 4, 2004, complainant filed a formal complaint, comprised of the two claims identified above. On July 12, 2004, the agency dismissed claim (2) on the grounds of untimely EEO Counselor contact. However, the agency accepted claim (1) for investigation. The agency notified complainant that the dismissed portion (claim (2)) would not be investigated and is not appealable to the Commission until final action is taken on the remainder of the complaint. On August 31, 2004, prior to the investigation of the accepted claim (1), complainant and the agency settled that claim pursuant to the terms of the settlement agreement and complainant reserved her right to appeal the dismissal of claim (2). On September 24, 2004, complainant filed this appeal to the Commission. As claim (2) is the sole viable claim remaining in the instant complaint, it is properly before the Commission. The record in this case contains a letter to the agency dated July 17, 2004, wherein complainant argued that in late June 1999, when she became aware that she had not been considered or selected for the GS-13 EEO Officer position, she initiated contact with an EEO Director, U.S. Army Material Command. Complainant claimed that she discussed the possibility of her filing an EEO complaint. Complainant claimed that the EEO Director contacted some EEO Counselors and secured someone who could provide her with EEO counseling. Complainant stated that, in the meantime, she was searching for a representative but that before she met with an EEO Counselor, she was selected for a the position at the 254th Base Support Battalion and she had to prepare to move overseas. The record also contains an August 26, 2004 response, wherein the agency stated that in regard to complainant's claim of an earlier EEO Counselor contact in June 1999, the agency EEO Office has confirmed that there is no record or any other documentation to support that assertion. The Commission determines that the agency's dismissal of claim (2) of complainant's complaint was proper. Complainant did not initiate EEO Counselor contact regarding claim (2) (which occurred occurred between May 1998 and June 1999), until March 8, 2004, which is beyond the forty-five (45) day limitation period. Regarding complainant's argument that she initiated EEO Counselor contact in June 1999, and not in March 2004, the Commission determines that to the extent that complainant may have timely contacted an EEO Counselor in June 1999, she has in effect abandoned pursuit of that matter until again raising the issue in March 2004. 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 claim (2) of the instant 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 26, 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" ]	[ -0.10432369261980057, 0.09754891693592072, 0.008009747602045536, 0.08465416729450226, 0.03249925374984741, 0.06294386088848114, 0.06414669752120972, -0.0037254448980093002, -0.08392466604709625, 0.08588279783725739, -0.005276743788272142, -0.018243564292788506, 0.05489995330572128, -0.0580...
47	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a41726_r.txt	01a41726_r.txt	TXT	text/plain	10,291	Marilyn Jones v. Department of the Army 01A41726 January 5, 2005 . Marilyn Jones, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.	January 5, 2005	Appeal Number: 01A41726 Case Facts: Complainant initiated contact with the agency's EEO Office on June 2, 2003. On August 21, 2003, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against on the bases of her race (Black), sex (female), and in reprisal for her previous EEO activity under Title VII when: 1. The Colonel treated her differently than other employees when he did not assist her in being reassigned, did not intercede on her behalf concerning her performance appraisal for Fiscal Year 2000, and did nothing when she complained that someone broke her office keys in February 2003. 2. The EEO Office did not process her prior complaints properly and falsified information in the investigation of Agency No. AKGVFO0108B0020 in April 2002. 3. The EEO Office is not processing Agency No. ARCEJACK03OCT0001 in accordance with regulations and the Labor Counsel acted unprofessionally during investigation of this complaint. By decision dated December 18, 2003, the agency dismissed claim (1) of 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 EEO contact in June 2003 was more than 45 days after the most recent incident occurred, i.e., someone breaking complainant's office keys in February 2003. The agency noted that complainant was involved in the EEO counseling process with regard to other issues from July 2002 through October 2002 and from December 2002 through March 2003. The agency noted that complainant had the opportunity to raise the issues set forth in claim (1) during these contacts with the EEO Counselor, but she failed to do so. With regard to claim (2), the agency dismissed this claim pursuant to 29 C..F.R. §1614.107(a)(8) on the grounds that it concerns dissatisfaction with the processing of a previously filed complaint. The agency also dismissed this claim pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds that it involves the same claim that is pending or previously decided by the agency. The agency stated that final actions were issued on February 27, 2003, with regard to complainant's complaints, Agency No. AKGVFO9911J0010, Agency No. AKGVFO0108B0020, and AKGVFO0109B0060 and that the matter set forth in claim (2) of the instant complaint was raised during the processing of the previous complaints. With respect to claim (3), the agency dismissed this claim pursuant to 29 C.F.R. §1614.107(a)(8) on the grounds that this claim concerns dissatisfaction with the processing of a previously filed complaint. On appeal, complainant contends that prior to her contact of an EEO Counselor in June 2003, she submitted a request dated September 23, 2002, for an EEO Counselor concerning the Colonel. Complainant maintains that on December 10, 2002, she spoke with an EEO Specialist regarding the Colonel. Complainant states that pursuant to a third request for an EEO Counselor concerning the Colonel, she was assigned an EEO Counselor on March 18, 2003. According to complainant, on April 17, 2003, she received an e-mail message from the EEO Counselor stating that he would no longer be the assigned EEO Counselor regarding her complaint against the Colonel. With respect to claim (3), complainant maintains that no prior complaint was filed regarding the Labor Counselor. In response, the agency asserts with regard to claim (1) that complainant was aware of the alleged discriminatory actions on or about February 2003. The agency notes that complainant filed a security report concerning her desk being broken into and her keys being bent. The agency states that complainant stated to the investigating officer that she believed the Colonel was involved. According to the agency, the investigation was concluded on or about March 12, 2003. In support of its position, the agency submits a statement from the Discrimination Complaints Manager. The Manager states that complainant was in EEO counseling from July 2002 through October 2002 and from December 2002 through March 2003, but she did not raise issues concerning the Colonel with an EEO Counselor at these times. With regard to claims (2) and (3), the agency asserts that dissatisfaction with the EEO process must be raised within the underlying complaint rather than as a new complaint. The agency states that complainant is expressing dissatisfaction with the processing of previous complaint and a complaint that is currently ongoing and pending with the agency. Legal Analysis: Upon review of the record, the Commission finds that the agency properly dismissed claim (1) on the grounds that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant has offered no evidence to support her argument that she raised the alleged matters with an EEO Counselor prior to her June 2003 contact of an EEO Counselor. In light of the fact that the most recent incident occurred in February 2003, we find that complainant's contact of an EEO Counselor in June 2003 was after the expiration of the 45-day limitation period for contacting an EEO Counselor. As for claims (2) and (3), EEOC Regulation 29 C.F.R. §1614.107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a previously filed complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See Management Directive 110 (MD-110), 5-23, 5-25 - 5-26 (November 9, 1999). The Commission finds that complainant is alleging dissatisfaction with the processing of previously filed complaints and thus these claims were properly dismissed pursuant to 29 C.F.R. §1614.107(a)(8).<1> Final Decision: Accordingly, the agency's decision dismissing complainant's complaint was proper and is AFFIRMED.	Marilyn Jones v. Department of the Army 01A41726 January 5, 2005 . Marilyn Jones, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A41726 Agency No. ARJACK03JUN0007 DECISION Complainant initiated contact with the agency's EEO Office on June 2, 2003. On August 21, 2003, complainant filed a formal EEO complaint wherein she claimed that she was discriminated against on the bases of her race (Black), sex (female), and in reprisal for her previous EEO activity under Title VII when: 1. The Colonel treated her differently than other employees when he did not assist her in being reassigned, did not intercede on her behalf concerning her performance appraisal for Fiscal Year 2000, and did nothing when she complained that someone broke her office keys in February 2003. 2. The EEO Office did not process her prior complaints properly and falsified information in the investigation of Agency No. AKGVFO0108B0020 in April 2002. 3. The EEO Office is not processing Agency No. ARCEJACK03OCT0001 in accordance with regulations and the Labor Counsel acted unprofessionally during investigation of this complaint. By decision dated December 18, 2003, the agency dismissed claim (1) of 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 EEO contact in June 2003 was more than 45 days after the most recent incident occurred, i.e., someone breaking complainant's office keys in February 2003. The agency noted that complainant was involved in the EEO counseling process with regard to other issues from July 2002 through October 2002 and from December 2002 through March 2003. The agency noted that complainant had the opportunity to raise the issues set forth in claim (1) during these contacts with the EEO Counselor, but she failed to do so. With regard to claim (2), the agency dismissed this claim pursuant to 29 C..F.R. §1614.107(a)(8) on the grounds that it concerns dissatisfaction with the processing of a previously filed complaint. The agency also dismissed this claim pursuant to 29 C.F.R. §1614.107(a)(1) on the grounds that it involves the same claim that is pending or previously decided by the agency. The agency stated that final actions were issued on February 27, 2003, with regard to complainant's complaints, Agency No. AKGVFO9911J0010, Agency No. AKGVFO0108B0020, and AKGVFO0109B0060 and that the matter set forth in claim (2) of the instant complaint was raised during the processing of the previous complaints. With respect to claim (3), the agency dismissed this claim pursuant to 29 C.F.R. §1614.107(a)(8) on the grounds that this claim concerns dissatisfaction with the processing of a previously filed complaint. On appeal, complainant contends that prior to her contact of an EEO Counselor in June 2003, she submitted a request dated September 23, 2002, for an EEO Counselor concerning the Colonel. Complainant maintains that on December 10, 2002, she spoke with an EEO Specialist regarding the Colonel. Complainant states that pursuant to a third request for an EEO Counselor concerning the Colonel, she was assigned an EEO Counselor on March 18, 2003. According to complainant, on April 17, 2003, she received an e-mail message from the EEO Counselor stating that he would no longer be the assigned EEO Counselor regarding her complaint against the Colonel. With respect to claim (3), complainant maintains that no prior complaint was filed regarding the Labor Counselor. In response, the agency asserts with regard to claim (1) that complainant was aware of the alleged discriminatory actions on or about February 2003. The agency notes that complainant filed a security report concerning her desk being broken into and her keys being bent. The agency states that complainant stated to the investigating officer that she believed the Colonel was involved. According to the agency, the investigation was concluded on or about March 12, 2003. In support of its position, the agency submits a statement from the Discrimination Complaints Manager. The Manager states that complainant was in EEO counseling from July 2002 through October 2002 and from December 2002 through March 2003, but she did not raise issues concerning the Colonel with an EEO Counselor at these times. With regard to claims (2) and (3), the agency asserts that dissatisfaction with the EEO process must be raised within the underlying complaint rather than as a new complaint. The agency states that complainant is expressing dissatisfaction with the processing of previous complaint and a complaint that is currently ongoing and pending with the agency. Upon review of the record, the Commission finds that the agency properly dismissed claim (1) on the grounds that complainant failed to initiate contact with an EEO Counselor in a timely manner. Complainant has offered no evidence to support her argument that she raised the alleged matters with an EEO Counselor prior to her June 2003 contact of an EEO Counselor. In light of the fact that the most recent incident occurred in February 2003, we find that complainant's contact of an EEO Counselor in June 2003 was after the expiration of the 45-day limitation period for contacting an EEO Counselor. As for claims (2) and (3), EEOC Regulation 29 C.F.R. §1614.107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a previously filed complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See Management Directive 110 (MD-110), 5-23, 5-25 - 5-26 (November 9, 1999). The Commission finds that complainant is alleging dissatisfaction with the processing of previously filed complaints and thus these claims were properly dismissed pursuant to 29 C.F.R. §1614.107(a)(8).<1> Accordingly, the agency's decision dismissing complainant's 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 January 5, 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 ______________________________ 1In light of our affirmance of the dismissal of claim (2) on this grounds, we need not address the agency's alternative grounds for dismissal.	[ "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" ]	[ -0.08709307014942169, 0.052544303238391876, 0.006395461969077587, -0.016291478648781776, 0.019451072439551353, 0.008266961202025414, 0.04429945349693298, -0.009617157280445099, -0.05134103074669838, 0.0495738722383976, 0.01037583313882351, 0.0005229692906141281, 0.03291942551732063, -0.076...
48	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a02185.txt	01a02185.txt	TXT	text/plain	10,197		June 5, 2000	Appeal Number: 01A02185 Case Facts: The Commission finds that the agency's December 20, 1999 decision dismissing the complaint on the grounds of untimely EEO counselor contact and for failure to raise some of the claims with the EEO Counselor 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> By letter dated August 20, 1998, Complainant filed a Whistle Blower Protection Act complaint to the agency's Office of Special Counsel (OSC). By letter dated September 4, 1998, Complainant was advised that his appointment would be terminated effective September 21, 1998. The record shows that Complainant sought EEO counseling on November 24, 1998, claiming that he had been discriminated against on the bases of reprisal, and age when he was terminated from his position on September 28, 1998. Subsequently, Complainant filed a formal complaint claiming that he had been discriminated against on the basis of reprisal regarding the following issues: (1) assignment of duties from August 10, 1998 to September 21, 1998; (2) harassment from September 1997 to January 1999;<2> (3) termination on September 21, 1998; (4) working conditions from April 8, 1998 to September 21, 1998; and, (5) not an EEO employer on January 1999. The agency issued a final decision dismissing claim (1), (2), (3), and (4) on the basis of untimely EEO counselor contact. Claims (1), (2), (4), and (5) were dismissed on the grounds that Complainant failed to seek EEO counseling concerning these issues. Claims (2) and (5) were also dismissed for failure to state a claim. On appeal, Complainant contends that his EEO counselor contact was delayed by the agency's misrepresentation of his EEO rights. Complainant specifically contends that on September 16, 1998, the agency's Personnel Director informed Complainant that he had "no choice but to take his complaint out of the VA system". In response to Complainant's appeal, the agency provides an affidavit issued by the EEO Manager, in which she states that Complainant was aware of his EEO rights and obligations because: he attended an EEO training class on July 22, 1998; and "at all times during the year prior to Complainant's termination, the medical center posted notices specifically notifying employees of the 45-day deadline for contacting an EEO counselor". The agency also provided an affidavit issued by the Chief of Human Resources in which he states that on or around September 16, 1998, after advising Complainant that discrimination complaints must be filed with an EEO counselor, Complainant informed him "that it was his intention to file with the Office of Special Counsel". The record in this case also includes a copy of Complainant's training during Fiscal Year 1998, which indicates that he had taken an EEO training class; a statement by the EEO training instructor, who indicated that the forty-five day limitation period had been addressed during the training class; and a copy of an EEO poster addressing the forty-five day limitation period. A review of the record persuades the Commission that the final agency decision was proper. The record shows that Complainant attended an EEO training class on July 22, 1998. Moreover, the evidence provided by the agency concerning EEO posters at Complainant's workplace is enough to find that he had constructive notice of his EEO rights and obligations. Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). Complainant's decision to pursue an administrative complaint with the Office of Special Counsel is insufficient to toll the forty-five day time limit requirement. The Commission has specifically held that internal efforts or appeals of an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Therefore, claims (1), (2), (3), and (4) were properly dismissed on the basis of untimely EEO counselor contact. Legal Analysis: The Commission finds that the agency's December 20, 1999 decision dismissing the complaint on the grounds of untimely EEO counselor contact and for failure to raise some of the claims with the EEO Counselor 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> By letter dated August 20, 1998, Complainant filed a Whistle Blower Protection Act complaint to the agency's Office of Special Counsel (OSC). By letter dated September 4, 1998, Complainant was advised that his appointment would be terminated effective September 21, 1998. The record shows that Complainant sought EEO counseling on November 24, 1998, claiming that he had been discriminated against on the bases of reprisal, and age when he was terminated from his position on September 28, 1998. Subsequently, Complainant filed a formal complaint claiming that he had been discriminated against on the basis of reprisal regarding the following issues: (1) assignment of duties from August 10, 1998 to September 21, 1998; (2) harassment from September 1997 to January 1999;<2> (3) termination on September 21, 1998; (4) working conditions from April 8, 1998 to September 21, 1998; and, (5) not an EEO employer on January 1999. The agency issued a final decision dismissing claim (1), (2), (3), and (4) on the basis of untimely EEO counselor contact. Claims (1), (2), (4), and (5) were dismissed on the grounds that Complainant failed to seek EEO counseling concerning these issues. Claims (2) and (5) were also dismissed for failure to state a claim. On appeal, Complainant contends that his EEO counselor contact was delayed by the agency's misrepresentation of his EEO rights. Complainant specifically contends that on September 16, 1998, the agency's Personnel Director informed Complainant that he had "no choice but to take his complaint out of the VA system". In response to Complainant's appeal, the agency provides an affidavit issued by the EEO Manager, in which she states that Complainant was aware of his EEO rights and obligations because: he attended an EEO training class on July 22, 1998; and "at all times during the year prior to Complainant's termination, the medical center posted notices specifically notifying employees of the 45-day deadline for contacting an EEO counselor". The agency also provided an affidavit issued by the Chief of Human Resources in which he states that on or around September 16, 1998, after advising Complainant that discrimination complaints must be filed with an EEO counselor, Complainant informed him "that it was his intention to file with the Office of Special Counsel". The record in this case also includes a copy of Complainant's training during Fiscal Year 1998, which indicates that he had taken an EEO training class; a statement by the EEO training instructor, who indicated that the forty-five day limitation period had been addressed during the training class; and a copy of an EEO poster addressing the forty-five day limitation period. A review of the record persuades the Commission that the final agency decision was proper. The record shows that Complainant attended an EEO training class on July 22, 1998. Moreover, the evidence provided by the agency concerning EEO posters at Complainant's workplace is enough to find that he had constructive notice of his EEO rights and obligations. Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). Complainant's decision to pursue an administrative complaint with the Office of Special Counsel is insufficient to toll the forty-five day time limit requirement. The Commission has specifically held that internal efforts or appeals of an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Therefore, claims (1), (2), (3), and (4) were properly dismissed on the basis of untimely EEO counselor contact. EEOC Regulations require that a Complainant first raise an issue or concern with the EEO counselor before a formal complaint concerning said issue or concern is filed. The record shows that claim (5) was not brought to the attention of the EEO counselor during the inquiry of Complainant's informal complaint. Final Decision: Accordingly, claim (5) was properly dismissed by the agency on the grounds of Complainant's failure to bring this claim to the EEO counselor's attention prior to his formal complaint. Therefore, we find that the final agency decision was proper and it is hereby AFFIRMED.	Anthony F. Kirkpatrick v. Department of Veterans Affairs 01A02185 June 5, 2000 Anthony F. Kirkpatrick, ) Complainant, ) ) v. ) Appeal No. 01A02185 ) Agency No. 99-0107 Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs, ) Agency. ) ________________________________) DECISION The Commission finds that the agency's December 20, 1999 decision dismissing the complaint on the grounds of untimely EEO counselor contact and for failure to raise some of the claims with the EEO Counselor 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> By letter dated August 20, 1998, Complainant filed a Whistle Blower Protection Act complaint to the agency's Office of Special Counsel (OSC). By letter dated September 4, 1998, Complainant was advised that his appointment would be terminated effective September 21, 1998. The record shows that Complainant sought EEO counseling on November 24, 1998, claiming that he had been discriminated against on the bases of reprisal, and age when he was terminated from his position on September 28, 1998. Subsequently, Complainant filed a formal complaint claiming that he had been discriminated against on the basis of reprisal regarding the following issues: (1) assignment of duties from August 10, 1998 to September 21, 1998; (2) harassment from September 1997 to January 1999;<2> (3) termination on September 21, 1998; (4) working conditions from April 8, 1998 to September 21, 1998; and, (5) not an EEO employer on January 1999. The agency issued a final decision dismissing claim (1), (2), (3), and (4) on the basis of untimely EEO counselor contact. Claims (1), (2), (4), and (5) were dismissed on the grounds that Complainant failed to seek EEO counseling concerning these issues. Claims (2) and (5) were also dismissed for failure to state a claim. On appeal, Complainant contends that his EEO counselor contact was delayed by the agency's misrepresentation of his EEO rights. Complainant specifically contends that on September 16, 1998, the agency's Personnel Director informed Complainant that he had "no choice but to take his complaint out of the VA system". In response to Complainant's appeal, the agency provides an affidavit issued by the EEO Manager, in which she states that Complainant was aware of his EEO rights and obligations because: he attended an EEO training class on July 22, 1998; and "at all times during the year prior to Complainant's termination, the medical center posted notices specifically notifying employees of the 45-day deadline for contacting an EEO counselor". The agency also provided an affidavit issued by the Chief of Human Resources in which he states that on or around September 16, 1998, after advising Complainant that discrimination complaints must be filed with an EEO counselor, Complainant informed him "that it was his intention to file with the Office of Special Counsel". The record in this case also includes a copy of Complainant's training during Fiscal Year 1998, which indicates that he had taken an EEO training class; a statement by the EEO training instructor, who indicated that the forty-five day limitation period had been addressed during the training class; and a copy of an EEO poster addressing the forty-five day limitation period. A review of the record persuades the Commission that the final agency decision was proper. The record shows that Complainant attended an EEO training class on July 22, 1998. Moreover, the evidence provided by the agency concerning EEO posters at Complainant's workplace is enough to find that he had constructive notice of his EEO rights and obligations. Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). Complainant's decision to pursue an administrative complaint with the Office of Special Counsel is insufficient to toll the forty-five day time limit requirement. The Commission has specifically held that internal efforts or appeals of an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Therefore, claims (1), (2), (3), and (4) were properly dismissed on the basis of untimely EEO counselor contact. EEOC Regulations require that a Complainant first raise an issue or concern with the EEO counselor before a formal complaint concerning said issue or concern is filed. The record shows that claim (5) was not brought to the attention of the EEO counselor during the inquiry of Complainant's informal complaint. Accordingly, claim (5) was properly dismissed by the agency on the grounds of Complainant's failure to bring this claim to the EEO counselor's attention prior to his formal complaint. Therefore, we find that the final agency decision was proper and it is hereby AFFIRMED.<3> 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: June 5, 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 after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _______ _________________________________ DATE EQUAL EMPLOYMENT ASSISTANT 1 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. 2 Notwithstanding this claim, the record shows that Complainant's employment terminated on September 21, 1998, and not January 1999. 3 Because we affirm the agency's decision to dismiss the instant claims for the reasons set forth above, we need not address the agency's alternative grounds for dismissal.	[ "Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993)", "Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)", "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" ]	[ -0.08016259968280792, 0.09480889141559601, 0.010011752136051655, -0.013317872770130634, 0.04124971106648445, 0.04304447025060654, 0.04528723284602165, 0.07062716037034988, 0.013741827569901943, 0.046357713639736176, 0.04081019386649132, -0.02250322699546814, -0.0362904816865921, 0.01633562...
49	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120171854.txt	0120171854.txt	TXT	text/plain	15,924	Beatriz P,1 Complainant, v. Mick Mulvaney, Director, Executive Office of the President (Office of Management and Budget (OMB)), Agency.	May 3, 2017	Appeal Number: 0120171854 Background: At the time of events giving rise to this complaint, Complainant worked as an Organizational Management Specialist, GS-15 performing a human resources function at the Agency's Management and Operations Division in Washington, DC. She has been in the same position since 2008. Her immediate supervisor, S1, is the Director of Management and Operations. On January 13, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that from 2008 to the present, the Agency subjected her to a hostile work environment, harassment, and disparate treatment based on her race (Black) when: 1. It limited her selection to telework days (no Mondays and Fridays); 2. S1 does not respond to her emails; 3. Her time and attendance are constantly questioned; 4. Her position description and job title have not changed, as promised; 5. She does not receive as many awards as her colleagues; 6. She receives lower performance ratings than her colleagues; 7. She has not had a performance plan in years; 8. S1 limits her professional development opportunities; 9. She is not given job assignments with high visibility with Presidential Appointees and senior management; 10. S1 denies her equal work assignments; 11. She is excluded from human resources meetings by S1, another identified manager, and the human resources team; 12. From 2008 to August 2016, she did not have access to S1's calendar; 13. In 2012, she was denied from participating in the Diversity and Inclusion Counsel; 14. She did not receive a Time Off Award for completing an OMB Records Schedule ahead of time, as promised by S1 in September 2015; 15. In the Spring of 2016, she was not considered by S1 for the Acting Chief Human Capitol Office (CHCO) role; 16. In June 2016, her job duties as Records Manager were reassigned to the Information Technology (IT) team; and 17. On July 26, 2016, she did not receive a quality step increase during an Award Ceremony for OMB employees. In her initial contacts with the EEO office Complainant wrote that the discrimination and harassment were by S1. The Agency dismissed the complaint for being untimely filed. It reasoned that Complainant received the notice of right to file a complaint on December 6, 2016 and December 16, 2016, and wrote she received it on December 28, 2017, in her complaint which she filed by hand delivery on January 13, 2017, beyond the 15-calendar day time limit. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. Unless the complainant states otherwise in writing, after the agency has received written notice of the name, address and telephone number of a representative for the complainant, all official correspondence shall be with the representative with copies to the complainant. 29 C.F.R. § 1614.605(d). When the 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. The Complainant is responsible for proceeding with the complaint whether or not she has designated a representative. 29 C.F.R. § 1614.605(e). Complainant initiated EEO counseling on September 7, 2016, and on September 30, 2016, completed a designation of representative form. In October 2016, the representative informed the EEO counselor that he is not currently practicing before any bar and it is unnecessary to refer to him as an attorney. In her report, the EEO counselor wrote that she met with Complainant on December 6, 2016, reviewed the notice of right to file requirements, and discussed the issuance of the notice of right to file the formal complaint with her. In its dismissal letter, the Agency indicated that Complainant attended this meeting in person and her representative attended via telephone. In appeal argument, Complainant's representative writes that both he and Complainant attended this meeting via telephone. On December 6, 2016, the EEO counselor issued the notice of right to file a discrimination complaint. It was sent by certified mail and directed to Complainant's representative, and copied by certified mail to Complainant. Complainant's representative did not claim the package, and it was returned to the Agency between January 9, 2017 to January 12, 2017. A computerized postal tracking receipt for the notice of right to file mailed to Complainant indicates it was delivered and left with an individual on December 12, 2016, at Complainant's city and state. Therein, the EEO counselor wrote that the time limit to file an EEO complaint was within 15 calendar days after receipt of this notice, and gave various methods for filing - a mailing address, facsimile number, and an email address. The EEO counselor instructed therein that the aggrieved person must inform the EEO office in writing if her representation and/or official mailing address change, and that failure to do so may result in a determination that she has failed to prosecute her complaint due to mailings that are not responded too. In its dismissal letter, the Agency EEO Director wrote that on December 16, 2016, Complainant contacted the Director of EEO saying she just received the notice of right to file from an individual the postal service left the packet with on December 12, 2016, and asked about filing timeframes. The EEO Director continued that she advised Complainant that she had 15 calendar days from the date she received the notice of right to file. In argument on appeal Complainant's representative writes that in his client's December 16, 2016 discussion with the EEO Director there was a misunderstanding - Complainant attempted to convey that she just received notice that she had certified mail at the postal service and asked about the filing timeframe. On appeal Complainant's representative argues that on December 28, 2016, Complainant came to the EEO Office and saw the EEO counselor who handed her the notice of right to file. In her complaint, Complainant indicated she received the notice of final interview on December 28, 2016. On January 6, 2017, Complainant's representative emailed the EEO counselor that it came to his attention that Complainant received a copy of the notice of right to file, he did not receive his, and he requested a copy via email. The EEO counselor complied with his request on January 9, 2017, and asked him to confirm receipt, which he did. In appeal argument Complainant's representative wrote that on January 6, 2017, Complainant visited the EEO office to file her formal complaint, and when she told the EEO counselor that her representative did not yet receive a copy of the notice of right to file, the EEO counselor responded that the filing timeframe would not start to commence until her representative received his copy from the Agency. He further argues that given the above, Complainant's filing of her complaint on January 13, 2017, should be deemed timely. In opposition to the appeal, the Agency argues that the FAD should be affirmed. Both parties write on appeal that their efforts to obtain an affidavit from the EEO counselor resulted in no response. The Agency writes that in January 2017, the EEO counselor left its employ. Since the EEO counselor did not explicitly write in her report that on December 6, 2016, she handed Complainant the notice of right to file a formal complaint, nor did she create a receipt of a hand-off for Complainant's signature, which would be a prudent business practice, we find that the Agency has not shown Complainant received the notice of right to file on December 6, 2016. We find that the preponderance of the evidence shows Complainant received the notice of right to file on December 12, 2016. A computerized postal tracking receipt indicates that the package (notice of right to file) was "Delivered, Left with Individual" on December 12, 2016, in Complainant's city and state. The Director of EEO, under her signature, wrote that Complainant contacted her on December 16, 2016, saying she just received the notice of right to file from the individual who the postal employee left the packet on December 12, 2016, and she advised Complainant that the 15-day time limit runs from the date she received the notice of right to file. On appeal Complainant's representative argued that on December 16, 2016, Complainant tried to convey to the EEO Director that she just received "notice" that she had certified mail. We find that the EEO Director's version of events is supported by a preponderance of the evidence. First, the postal service in the tracking receipt indicated that the package was delivered and left with an individual on December 12, 2016, not merely that a notice of attempted delivery was made (the tracking receipt indicated that two prior attempts at delivery failed because there was "no access.") Further, the Director's version of events is written under her signature and Complainant's is written by her non-attorney representative in argument - not under Complainant's signature. Final Decision: Accordingly, because Complainant received the notice of right to file her complaint on December 12, 2016, her filing of her EEO complaint on January 17, 2017, was untimely. Even if, as Complainant contends, she attempted to file her complaint on January 6, 2017, and the EEO counselor misled her by advising the time limit to file does not run until her representative received the notice (which occurred on January 9, 2017), this does not make her filing timely since the time limit for her to file the complaint expired after December 27, 2017, before she was allegedly misled. The FAD is AFFIRMED.	Beatriz P,1 Complainant, v. Mick Mulvaney, Director, Executive Office of the President (Office of Management and Budget (OMB)), Agency. Appeal No. 0120171854 Agency No. OMB-17-02 DECISION On May 3, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision dated March 10, 2017, 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.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Organizational Management Specialist, GS-15 performing a human resources function at the Agency's Management and Operations Division in Washington, DC. She has been in the same position since 2008. Her immediate supervisor, S1, is the Director of Management and Operations. On January 13, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that from 2008 to the present, the Agency subjected her to a hostile work environment, harassment, and disparate treatment based on her race (Black) when: 1. It limited her selection to telework days (no Mondays and Fridays); 2. S1 does not respond to her emails; 3. Her time and attendance are constantly questioned; 4. Her position description and job title have not changed, as promised; 5. She does not receive as many awards as her colleagues; 6. She receives lower performance ratings than her colleagues; 7. She has not had a performance plan in years; 8. S1 limits her professional development opportunities; 9. She is not given job assignments with high visibility with Presidential Appointees and senior management; 10. S1 denies her equal work assignments; 11. She is excluded from human resources meetings by S1, another identified manager, and the human resources team; 12. From 2008 to August 2016, she did not have access to S1's calendar; 13. In 2012, she was denied from participating in the Diversity and Inclusion Counsel; 14. She did not receive a Time Off Award for completing an OMB Records Schedule ahead of time, as promised by S1 in September 2015; 15. In the Spring of 2016, she was not considered by S1 for the Acting Chief Human Capitol Office (CHCO) role; 16. In June 2016, her job duties as Records Manager were reassigned to the Information Technology (IT) team; and 17. On July 26, 2016, she did not receive a quality step increase during an Award Ceremony for OMB employees. In her initial contacts with the EEO office Complainant wrote that the discrimination and harassment were by S1. The Agency dismissed the complaint for being untimely filed. It reasoned that Complainant received the notice of right to file a complaint on December 6, 2016 and December 16, 2016, and wrote she received it on December 28, 2017, in her complaint which she filed by hand delivery on January 13, 2017, beyond the 15-calendar day time limit. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. Unless the complainant states otherwise in writing, after the agency has received written notice of the name, address and telephone number of a representative for the complainant, all official correspondence shall be with the representative with copies to the complainant. 29 C.F.R. § 1614.605(d). When the 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. The Complainant is responsible for proceeding with the complaint whether or not she has designated a representative. 29 C.F.R. § 1614.605(e). Complainant initiated EEO counseling on September 7, 2016, and on September 30, 2016, completed a designation of representative form. In October 2016, the representative informed the EEO counselor that he is not currently practicing before any bar and it is unnecessary to refer to him as an attorney. In her report, the EEO counselor wrote that she met with Complainant on December 6, 2016, reviewed the notice of right to file requirements, and discussed the issuance of the notice of right to file the formal complaint with her. In its dismissal letter, the Agency indicated that Complainant attended this meeting in person and her representative attended via telephone. In appeal argument, Complainant's representative writes that both he and Complainant attended this meeting via telephone. On December 6, 2016, the EEO counselor issued the notice of right to file a discrimination complaint. It was sent by certified mail and directed to Complainant's representative, and copied by certified mail to Complainant. Complainant's representative did not claim the package, and it was returned to the Agency between January 9, 2017 to January 12, 2017. A computerized postal tracking receipt for the notice of right to file mailed to Complainant indicates it was delivered and left with an individual on December 12, 2016, at Complainant's city and state. Therein, the EEO counselor wrote that the time limit to file an EEO complaint was within 15 calendar days after receipt of this notice, and gave various methods for filing - a mailing address, facsimile number, and an email address. The EEO counselor instructed therein that the aggrieved person must inform the EEO office in writing if her representation and/or official mailing address change, and that failure to do so may result in a determination that she has failed to prosecute her complaint due to mailings that are not responded too. In its dismissal letter, the Agency EEO Director wrote that on December 16, 2016, Complainant contacted the Director of EEO saying she just received the notice of right to file from an individual the postal service left the packet with on December 12, 2016, and asked about filing timeframes. The EEO Director continued that she advised Complainant that she had 15 calendar days from the date she received the notice of right to file. In argument on appeal Complainant's representative writes that in his client's December 16, 2016 discussion with the EEO Director there was a misunderstanding - Complainant attempted to convey that she just received notice that she had certified mail at the postal service and asked about the filing timeframe. On appeal Complainant's representative argues that on December 28, 2016, Complainant came to the EEO Office and saw the EEO counselor who handed her the notice of right to file. In her complaint, Complainant indicated she received the notice of final interview on December 28, 2016. On January 6, 2017, Complainant's representative emailed the EEO counselor that it came to his attention that Complainant received a copy of the notice of right to file, he did not receive his, and he requested a copy via email. The EEO counselor complied with his request on January 9, 2017, and asked him to confirm receipt, which he did. In appeal argument Complainant's representative wrote that on January 6, 2017, Complainant visited the EEO office to file her formal complaint, and when she told the EEO counselor that her representative did not yet receive a copy of the notice of right to file, the EEO counselor responded that the filing timeframe would not start to commence until her representative received his copy from the Agency. He further argues that given the above, Complainant's filing of her complaint on January 13, 2017, should be deemed timely. In opposition to the appeal, the Agency argues that the FAD should be affirmed. Both parties write on appeal that their efforts to obtain an affidavit from the EEO counselor resulted in no response. The Agency writes that in January 2017, the EEO counselor left its employ. Since the EEO counselor did not explicitly write in her report that on December 6, 2016, she handed Complainant the notice of right to file a formal complaint, nor did she create a receipt of a hand-off for Complainant's signature, which would be a prudent business practice, we find that the Agency has not shown Complainant received the notice of right to file on December 6, 2016. We find that the preponderance of the evidence shows Complainant received the notice of right to file on December 12, 2016. A computerized postal tracking receipt indicates that the package (notice of right to file) was "Delivered, Left with Individual" on December 12, 2016, in Complainant's city and state. The Director of EEO, under her signature, wrote that Complainant contacted her on December 16, 2016, saying she just received the notice of right to file from the individual who the postal employee left the packet on December 12, 2016, and she advised Complainant that the 15-day time limit runs from the date she received the notice of right to file. On appeal Complainant's representative argued that on December 16, 2016, Complainant tried to convey to the EEO Director that she just received "notice" that she had certified mail. We find that the EEO Director's version of events is supported by a preponderance of the evidence. First, the postal service in the tracking receipt indicated that the package was delivered and left with an individual on December 12, 2016, not merely that a notice of attempted delivery was made (the tracking receipt indicated that two prior attempts at delivery failed because there was "no access.") Further, the Director's version of events is written under her signature and Complainant's is written by her non-attorney representative in argument - not under Complainant's signature. Accordingly, because Complainant received the notice of right to file her complaint on December 12, 2016, her filing of her EEO complaint on January 17, 2017, was untimely. Even if, as Complainant contends, she attempted to file her complaint on January 6, 2017, and the EEO counselor misled her by advising the time limit to file does not run until her representative received the notice (which occurred on January 9, 2017), this does not make her filing timely since the time limit for her to file the complaint expired after December 27, 2017, before she was allegedly misled. 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) 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 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 17, 2017 __________________ Date 2 The Agency's Director of EEO initially dismissed Complainant's complaint on February 13, 2017, and provided the correct address for filing an appeal with this office. Complainant controverted with the Agency the dismissal. On March 10, 2017, the Agency's Representative, the Assistant General Counsel in correspondence termed a FAD concurred with the EEO Director's letter. Therein, the Assistant General Counsel provided appeal rights to this office, and attached a Notice of Appeal/Petition form. The address in both documents to file an appeal was many years out of date. The correct address is in the letterhead of this appellate decision. On appeal, Complainant writes that she timely filed the appeal on April 7, 2017, it was returned by the post office to her home with the message "box closed, no order" written thereon, so she resent the appeal. Given these circumstances, we find Complainant's appeal is timely. ------------------------------------------------------------ ------------------------------------------------------------	[ "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.106", "29 C.F.R. § 1614.605(d)", "29 C.F.R. § 1614.605(e)", "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" ]	[ -0.08651196211576462, 0.08217031508684158, 0.030295219272375107, 0.05710112303495407, -0.01637963391840458, 0.015866944566369057, 0.0051903738640248775, -0.050278596580028534, 0.016559235751628876, 0.019463689997792244, 0.011607605032622814, -0.05025099590420723, -0.03411756455898285, -0.0...
50	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985652.txt	01985652.txt	TXT	text/plain	15,314		January 18, 2000	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 v. Department of Veterans Affairs 01985652 January 18, 2000 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...	[ -0.09654886275529861, 0.05290539935231209, -0.016664808616042137, 0.0518353246152401, 0.0038085440173745155, 0.043731532990932465, 0.02106441929936409, 0.05730919912457466, -0.01808018423616886, 0.04575861990451813, -0.023043276742100716, 0.05230192840099335, -0.06846610456705093, 0.017554...
51	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000046.pdf	2019000046.pdf	PDF	application/pdf	14,112	Lonny C.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.	August 21, 2018	Appeal Number: 2019000046 Background: From December 2002 through December 2003, Complainant worked as a Custom s and Border Protection ("CBP") Customs Inspector, GS -07, at the Agency’s Blaine Washington Port of Entry, in Blaine, Washington. On March 7, 2018, Complainant filed a F ormal EEO C omplaint alleging that the Agency subjected him to discrimination on the bases of race /color (Black), and reprisal (engaging in prior protected activity) when: 1. On or about June 30, 2004, an EEO Manager and EEO Investigator failed to refer his allegation of a biased EEO investigation (Agency Case No. CBP04073C /044097) for EEO counseling in order to interfere with and chill his right s, and to stop his use of EEO process ;2 2. On or about April 12, 2009 and February 23, 2010, the Office of Professional Responsibility (“OPR”), Internal Affairs (“IA”), failed to refer his reprisal allegations for EEO counseling in order to interfere with a nd chill his rights, and to stop his use of EEO process ; 3. On or about April 12, 2009 and February 23, 2010, IA failed to provide Complainant with the findings of an investigation into his allegations of reprisal in order to interfere with and chill his rights, and to stop his use of EEO process ; 4. On or about April 12, 2009 and February 23, 2010, IA misrepresented the fact that it would conduct a fair and impartial investigation into Complainant's charges ; 5. On or about June 5,2009, Agency Attorneys and failed to refer Complainant's allegation of agency interference for EEO counseling in order to interfere with and chill his rights, and to stop his use of EEO process ; 6. On or about June 5, 2009, Agency Attorne ys misrepresented and concealed their own misconduct during official matters ; 7. On an unspecified date, he was prevented from timely pursuing a Rule 60(b) Motion in Federal District Court since his EEO complaints were not referred to EEO Counseling on July 25,2008, November 2008, April 12, 2009, and June 5,2009; 8. In or around August 2009, the Privacy and Diversity Office (“PDO”) improperly dismissed his EEO complaint (Agency Case No. HSCBP076242009), in order to stop his use of EEO process, and to protect high -ranking Agency employees ; 9. On or about April 26, 2010, and November 15, 2013, the PDO improperly dismissed his EEO complaint (Agency Case No. HS10CBP100281), to stop him from pursuing a civil action in federal district court and to protect high ranking Agency personnel from charges of interference and corruption; 10. On or about February 2, 2012, and February 10, 2014, a Supervisory CBP Officer failed to refer his allegations of corruption of the Agency’s EEO administrative process for EEO Counseling to interfere with and chill his rights, and to stop his use of the EEO process ; and 2 Complainant clarified in the record that he included Claim 1 to be used as background information only, not a “new” allegation of discrimination. 11. On or about November 30, 2017, the Acting Director, PDO failed to refer Complainant’s allegations of reprisal for EEO Counseling to protect high ranking Agency personnel from c harges, to include Agency interference. The Agency dismissed Claims 1 through 10 pursuant to 29 C.F.R. § 1614.107(a)(2 ) for untimely EEO contact. Alternately, the Agency dismissed Claims 2, 3, 4 and 7 for failure to state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible collateral attack on another administrative process, namely OPR. The Agen cy also dismissed Claims 1, 8, and 9, as well as Claim 11, pursuant to § 1614.107(a)(8) , for alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. By way of additional background, in March 2004, Compla inant filed an earlier EEO complaint alleging discrimination based on race/color and disability when he was terminated within days of the end his probationary period. 3 On June 23, 2005, an EEOC Administrative Judge (“AJ” ) issued a decision by summary judg ment in favor of the Agency. A fter a detailed analysis, the AJ concluded that a hearing was unnecessary because Complainant failed to demonstrate that a question of fact existed as to whether the Agency’s proffered l egitimate , nondiscriminatory reasons fo r Complainant’s termination were pretext for discrimination . Rather than appeal to the Commission, Complainant pursue d the matter in the United States District Court for the Western District of Washington (“District Court”). On October 3, 2007, the Distr ict Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency . Case No. WL 2288062 (W.D. Wash. 2007) . The Ninth Circuit Court of Appeals (“Court of Appeals”) affirmed the District Court’s dismissal, “with prejudic e,” in November 2008. 304 Fed. Appx. 540, 2008 WL 5272746 (C.A. 9 Wash.) . We take this opportunity to note that dismissal “with prejudice” bars “relitigation of any subsequent action involving the same parties and claims ” under the doctrine of res judicta . Conway v. Dep’t of the Army , EEOC Request No. 05981007 (Dec. 1, 1989). In 2008, Complainant became aware of a September 5, 2008 decision by an EEOC AJ in a case brought by another Agency employee. In that case, the AJ found that the Agency had improperly “coached” management witnesses and required them to submit their testim ony to be “vetted” by agency counsel prior to providing them to the EEO investigation, sometimes resulting in altered or omitted testimony without witness consent. Based on the evidence in this other case, Complainant believed he could prove his initial suspicions of bias during the processing of his initial EEO action, and that management testimony had also been “coached” in his 2003 EEO complaint and that evidence relevant to his race claim had been omitted. As a result, Complainant vigorously sought to reopen his 2004 complaint. 3 Complainant also appealed his termination with the Merit Systems Protection Board (“MSPB”) which dismissed the matter July 25, 2005. However, on October 29, 2009, the EEOC AJ denied his “Motion for Reconsideration,” deciding that he failed to establish jurisdiction since the matter had “been litigated in every available and conceivable forum and similarly dismissed .” The AJ also found Complainant failed to establish “newly discoverable” evidence and upheld her 2005 Decision on the merits. Complainant then filed a motion to vacate based on the “newly discovered evidence” with the District Court, which was d enied on January 20, 2010. The Court of Appeals affirmed the District Court’s denial on April 15, 2010 (9 th Cir. Ct. App. No. 10- 35098 (2010)). Unable to re -open his prior complaint, Complainant filed several “new” EEO c omplaints based on the new evidence , which the Agency dismissed as untimely and/or an attempt to relitigate a previously filed complaint. On appeal, this Commission affirmed the dismissals . See EEOC Appeal Nos. 0120100612 & 0120101387 (Apr il 16, 2010). Complainant also filed a civil actio n on the same matter. On October 5, 2017, the Court of Appeals affirmed the District Court’s detailed decision denying Complainant’s case on multiple grounds, including failure to timely raise the allegations with an EEO counselor under 29 C.F.R. § 1614.107(a)(2 ), and the legal doctrine of res judicata, which bars “litigation in a subsequent action of any claims that were raised or could have been raised in a prior action, as Complainant already raised the same matters in his Rule 60(b) Motion to Vacate. See 709 Fed. Appx. 847, aff’ing 107 F.Supp.3d 1161 (May 22, 2015, W.D. Wash.). On December 22, 2017, Complainant initiated contact with an EEO counselor regarding the allegation s in the instant complaint . Complainant then filed a formal complaint on the matter, which the Agency dismissed, giving rise to this appeal. 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. Claim 11 was also appropriately dismissed, under 29 C.F.R. § 1614.107(a) (8), as alleging dissatisfaction with the processing of a previously filed complaint. Additionally, we find dismissal is necessary under the doctrine of res judicata. Having thoroughly reviewed the record and history of Complainant’s allegations in both t his and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long since been decided. Final Decision: Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.	Lonny C.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2019000046 Agency No. HSCBP006812018 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission ( “EEOC ” or “Commission ”) from the Agency's August 21, 2018 dismissal of 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 From December 2002 through December 2003, Complainant worked as a Custom s and Border Protection ("CBP") Customs Inspector, GS -07, at the Agency’s Blaine Washington Port of Entry, in Blaine, Washington. On March 7, 2018, Complainant filed a F ormal EEO C omplaint alleging that the Agency subjected him to discrimination on the bases of race /color (Black), and reprisal (engaging in prior protected activity) when: 1. On or about June 30, 2004, an EEO Manager and EEO Investigator failed to refer his allegation of a biased EEO investigation (Agency Case No. CBP04073C /044097) for EEO counseling in order to interfere with and chill his right s, and to stop his use of EEO process ;2 2. On or about April 12, 2009 and February 23, 2010, the Office of Professional Responsibility (“OPR”), Internal Affairs (“IA”), failed to refer his reprisal allegations for EEO counseling in order to interfere with a nd chill his rights, and to stop his use of EEO process ; 3. On or about April 12, 2009 and February 23, 2010, IA failed to provide Complainant with the findings of an investigation into his allegations of reprisal in order to interfere with and chill his rights, and to stop his use of EEO process ; 4. On or about April 12, 2009 and February 23, 2010, IA misrepresented the fact that it would conduct a fair and impartial investigation into Complainant's charges ; 5. On or about June 5,2009, Agency Attorneys and failed to refer Complainant's allegation of agency interference for EEO counseling in order to interfere with and chill his rights, and to stop his use of EEO process ; 6. On or about June 5, 2009, Agency Attorne ys misrepresented and concealed their own misconduct during official matters ; 7. On an unspecified date, he was prevented from timely pursuing a Rule 60(b) Motion in Federal District Court since his EEO complaints were not referred to EEO Counseling on July 25,2008, November 2008, April 12, 2009, and June 5,2009; 8. In or around August 2009, the Privacy and Diversity Office (“PDO”) improperly dismissed his EEO complaint (Agency Case No. HSCBP076242009), in order to stop his use of EEO process, and to protect high -ranking Agency employees ; 9. On or about April 26, 2010, and November 15, 2013, the PDO improperly dismissed his EEO complaint (Agency Case No. HS10CBP100281), to stop him from pursuing a civil action in federal district court and to protect high ranking Agency personnel from charges of interference and corruption; 10. On or about February 2, 2012, and February 10, 2014, a Supervisory CBP Officer failed to refer his allegations of corruption of the Agency’s EEO administrative process for EEO Counseling to interfere with and chill his rights, and to stop his use of the EEO process ; and 2 Complainant clarified in the record that he included Claim 1 to be used as background information only, not a “new” allegation of discrimination. 11. On or about November 30, 2017, the Acting Director, PDO failed to refer Complainant’s allegations of reprisal for EEO Counseling to protect high ranking Agency personnel from c harges, to include Agency interference. The Agency dismissed Claims 1 through 10 pursuant to 29 C.F.R. § 1614.107(a)(2 ) for untimely EEO contact. Alternately, the Agency dismissed Claims 2, 3, 4 and 7 for failure to state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible collateral attack on another administrative process, namely OPR. The Agen cy also dismissed Claims 1, 8, and 9, as well as Claim 11, pursuant to § 1614.107(a)(8) , for alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. By way of additional background, in March 2004, Compla inant filed an earlier EEO complaint alleging discrimination based on race/color and disability when he was terminated within days of the end his probationary period. 3 On June 23, 2005, an EEOC Administrative Judge (“AJ” ) issued a decision by summary judg ment in favor of the Agency. A fter a detailed analysis, the AJ concluded that a hearing was unnecessary because Complainant failed to demonstrate that a question of fact existed as to whether the Agency’s proffered l egitimate , nondiscriminatory reasons fo r Complainant’s termination were pretext for discrimination . Rather than appeal to the Commission, Complainant pursue d the matter in the United States District Court for the Western District of Washington (“District Court”). On October 3, 2007, the Distr ict Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency . Case No. WL 2288062 (W.D. Wash. 2007) . The Ninth Circuit Court of Appeals (“Court of Appeals”) affirmed the District Court’s dismissal, “with prejudic e,” in November 2008. 304 Fed. Appx. 540, 2008 WL 5272746 (C.A. 9 Wash.) . We take this opportunity to note that dismissal “with prejudice” bars “relitigation of any subsequent action involving the same parties and claims ” under the doctrine of res judicta . Conway v. Dep’t of the Army , EEOC Request No. 05981007 (Dec. 1, 1989). In 2008, Complainant became aware of a September 5, 2008 decision by an EEOC AJ in a case brought by another Agency employee. In that case, the AJ found that the Agency had improperly “coached” management witnesses and required them to submit their testim ony to be “vetted” by agency counsel prior to providing them to the EEO investigation, sometimes resulting in altered or omitted testimony without witness consent. Based on the evidence in this other case, Complainant believed he could prove his initial suspicions of bias during the processing of his initial EEO action, and that management testimony had also been “coached” in his 2003 EEO complaint and that evidence relevant to his race claim had been omitted. As a result, Complainant vigorously sought to reopen his 2004 complaint. 3 Complainant also appealed his termination with the Merit Systems Protection Board (“MSPB”) which dismissed the matter July 25, 2005. However, on October 29, 2009, the EEOC AJ denied his “Motion for Reconsideration,” deciding that he failed to establish jurisdiction since the matter had “been litigated in every available and conceivable forum and similarly dismissed .” The AJ also found Complainant failed to establish “newly discoverable” evidence and upheld her 2005 Decision on the merits. Complainant then filed a motion to vacate based on the “newly discovered evidence” with the District Court, which was d enied on January 20, 2010. The Court of Appeals affirmed the District Court’s denial on April 15, 2010 (9 th Cir. Ct. App. No. 10- 35098 (2010)). Unable to re -open his prior complaint, Complainant filed several “new” EEO c omplaints based on the new evidence , which the Agency dismissed as untimely and/or an attempt to relitigate a previously filed complaint. On appeal, this Commission affirmed the dismissals . See EEOC Appeal Nos. 0120100612 & 0120101387 (Apr il 16, 2010). Complainant also filed a civil actio n on the same matter. On October 5, 2017, the Court of Appeals affirmed the District Court’s detailed decision denying Complainant’s case on multiple grounds, including failure to timely raise the allegations with an EEO counselor under 29 C.F.R. § 1614.107(a)(2 ), and the legal doctrine of res judicata, which bars “litigation in a subsequent action of any claims that were raised or could have been raised in a prior action, as Complainant already raised the same matters in his Rule 60(b) Motion to Vacate. See 709 Fed. Appx. 847, aff’ing 107 F.Supp.3d 1161 (May 22, 2015, W.D. Wash.). On December 22, 2017, Complainant initiated contact with an EEO counselor regarding the allegation s in the instant complaint . Complainant then filed a formal complaint on the matter, which the Agency dismissed, giving rise to this appeal. ANALYSIS AND FINDINGS We find the record and our regulations support the Agency’s stated grounds for dismissal. Claims 1 - 10 of the complaint occurred years before Complainant sought EEO counseling on December 22, 2017. 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. Claim 11 was also appropriately dismissed, under 29 C.F.R. § 1614.107(a) (8), as alleging dissatisfaction with the processing of a previously filed complaint. Additionally, we find dismissal is necessary under the doctrine of res judicata. Having thoroughly reviewed the record and history of Complainant’s allegations in both t his and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long since been decided. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, th e 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 S ector 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 ve ry 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 w ill 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 07, 2019 Date	[ "Conway v. Dep’t of the Army , EEOC Request No. 05981007 (Dec. 1, 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. § 1614.604(c)", "42 U.S.C. § 2000e" ]	[ -0.08515766263008118, 0.12706053256988525, -0.015365728177130222, -0.019495131447911263, 0.08215910941362381, 0.05927128344774246, 0.019967515021562576, -0.015802988782525063, -0.04380923509597778, -0.0066764806397259235, 0.0027871811762452126, -0.031776558607816696, -0.01013489905744791, ...
52	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001598.pdf	2019001598.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
53	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001597.pdf	2019001597.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
54	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001596.pdf	2019001596.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
55	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001595.pdf	2019001595.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
56	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001594.pdf	2019001594.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
57	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001593.pdf	2019001593.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
58	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019001590.pdf	2019001590.pdf	PDF	application/pdf	17,990	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.	November 28, 2018	Appeal Number: s Background: At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. Legal Analysis: the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606.	Ellen C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No s. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 Hearing No s. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X, 550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X Agency No s. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986, 16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498 DECISION On November 28, 2018, Complainant filed seven (7) appeal s with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. The Commission may, in its discretion, consolidate two or more complaint s of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. ISSUE S PRESENTED Whether the Administrative Judge properly dismissed Complainant’s class action complaints . 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Data Support Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Starting o n March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency retaliated against her, and other Agency employees, for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964. The allegations include: 1. Agen cy Case No. 16- 4523A -01295 a. Employees in the EEO office performed “invisible and imperceptible investigations”; b. An EEO Specialist (EEOS) m anipulated EEO claims; c. An EEO M anager (EEOM) allegedly physically assaulted an employee, and then handled the EEO complaint filed against him; d. The EEO Executive Director, two EEO Deputy Director s, EEO M, and EEOS used their positions to continue to cover up Agency discrimination complaints; e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen again”; f. An EEO investigator shared documents with “unknown persons”; and g. EEOS fragmented Complainant’s claim s, lied about the claims in the Counselor’s Report, withheld information from Complainant , ignored numerous claims of sexual harassment, shared private information with an unknown individual , and intimidated Complainant. 2. Agency Case No. 16- 4523A -02816 a. Agency officials blocked emails from her representative and electronically blocked attachments in emails; b. Agency officials used the U nited States Postal Service (USPS) to manipulate the delivery of mail “ for their own personal gain” ; c. Agency officials withheld parts of Complainant’s EEO complaints , which gave her an unfair disadvantage regarding the processing of her complaint s; and d. Agency officials were “cooking the books” for the Agency’s M anagement Directive -715 and EEOC Form 462 reports to lower the number of EEO complaint s reported to Congress. 2 Complainant was removed from the Agency on August 9, 2016. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 3. Agency Case No. 16- 4523A -02986 a. Employees in the EEO office concealed, withheld, and delay ed EEO claim s past the regulatory time to process an EEO complaint; and b. The Commander did not properly investigate Complainant’s allegations of sexual assault and sexual harassment . 4. Agency Case No. 16- 4523A -03029 a. EEO M willfully tampered with the mail (under the authorization of Agency officials) , which include d opening, concealing, destroying, damaging, obscuring, modifying , or substituting a delivery address to redirect the mail to someone other than the intended recipient ; b. An Agency attorney s ubmitted the wrong documents for one of Complainant’s EEO complaints , which “contaminated” her case; c. EEOM harassed Complainant to pick up her mail , after she was “emotionally harmed ” by Naval Criminal Investigative Services investigators ; d. A Director at the Commission (DC) and EEOM communicated behind Complainant’s back and did not share information with her ; e. EEOM received a document from DC , and then shared it with an unknown third party ; f. Agency officials used an employee at the USPS to conspire aga inst Complainant, and the class members, to manipulate the outcome of their EEO cases ; and g. Certified mail is “held hostage” to delay the processing of EEO c omplaints. 5. Agency Case No. 16- 4523A -03275 a. DC had “infinite communications” with an Agency attorney , without a designated letter of representation from the Agency ; b. DC conspired with the Agency to affirm the dismissal of her complaints ; and c. DC had ex parte communications with EEOM and an Agency attorney , without including Complainant or her repr esentative. 6. Agency Case No. 16- 4523A -03327 a. the Agency used the informal and formal stages of the EEO process to dismiss complaints that allege d dissatisfaction with the EEO process ; and b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put in EEO agents’ desks” the complaints against “High Officials.” 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 7. Agency Case No. 16- 4523A -03498 a. DC sent Complainant false information ; b. DC sent Complainant’s information t o an unknown individual and refused to reveal the name of the individual; c. DC allowed three named Agency officials access to her complaint information; d. DC deliberately withheld her case file information; e. DC had “infinite communications” with EEO M, which were concealed from Complainant and her representative; and f. DC affirmed the dismissal of her appeals and denied her due process. Complainant indicated that these complaints were class action complaints , and pursuant to 29 C.F.R. § 1614.204( d), the Agency timely forwarded Complainant’s complaints to the EEOC ’s San Francisco District Office . On June 4, 2016, the Agency filed an opposition to class certification of Complainant’s complaints . On June 7, 2016, Complainant filed a motion to certify one of her complaint s as a class action complaint . Complainant defined the class as Agency employees from March 31, 2008, through the present, who were targets of retaliation for seeking out guidance on the EEO process; contacting an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class was nationwide and listed the adverse actions against the class members. For example, Complainant alleged that the Agency subjected them to constructive discharges , removal s, denial s of promotions , threats, and negative performance evaluation s. On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification. On November 21, 2016, Complainant filed six (6) additional motion s to certify her complaints as class action s, in which she reiterated the claims raised in her formal complaints. On September 7, 2018, the Commission re -assigned the seven (7) complaints to an EEOC Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for Complainant’s complaints. In all of her decisions, t he AJ noted that 29 C.F.R. § 1614.204( d)(2) provides that an administrative judge may dismiss a class complaint, or any portion of the complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2) ; and that 29 C.F.R. § 1614.107( a)(8) states that a complaint may be dismissed if it “ alleges dissatisfaction with the processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ dismissed the seven (7) class complaints. 3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged dissatisfaction with the ir processing by the Agency and the Commission. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 On November 3, 2018, t he Agency issued a consolidated final order to fully implement the AJ’s seven decisions (7) dismissing Complainant’s requests for class certification . Complainant filed seven (7) separate appeal s but did not provide a statement in support of her appeal s. The Agency filed seven (7) opposition brief s on February 7, 2019. CONTENTIONS ON APPEAL On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class complaints because her allegations reflected a dissatisfaction with the processing of EEO complai nts. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R. § 1614.107( a)(8). The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the 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. ( Aug. 5, 2015 ) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. ( 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”). Certification of Class Complaints A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class. 29 C.F.R. § 1614.204(a)(2). 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 A class complaint may be dismissed if it does not meet each of these four requirements, or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. § 1614.204(d)(2). In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for certification of her class action complaints. Upon careful review of the records, we find that Complainant’s allegations we re related to the processing of EEO complaints, against officials at the Agency and the Commission. The se allegations were properly dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s decisions to dismiss Complainant’s seven (7) class action complaints. EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform the complainant either that the complaint is accepted and filed as an individual complaint of discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R. § 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). W e note that the Agency did not make a determination regarding Complainant’s individual complaint s of reprisal discrimination in the final order . However, we find that Complainant’s individual claims should also be dismissed pursuant to 29 C.F.R. § 1614.107( a)(8). 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 final order fully adopting the AJ’s dism issals of Complainant’s class action complaints. We also find that Complainant’s in dividual claims of reprisal discrimination shou ld be dismissed. 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) cal endar days of receipt of this decision. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 Opport unity 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 m ail 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 d efendant 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” mean s 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. 2019001590, 2019001593, 2019001594, 2019001595, 2019001596, 2019001597 & 2019001598 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 COMMISSIO N: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2019 Date	[ "29 C.F.R. § 1614.403(a)", "29 C.F.R. § 1614.606", "29 C.F.R. § 1614.204", "29 C.F.R. § 1614.107", "29 C.F.R. § 1614.204(a)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.204(d)", "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.F.R. §...	[ -0.04735109210014343, 0.035701293498277664, 0.05022278428077698, 0.007897110655903816, 0.06185489520430565, 0.05687347799539566, -0.017361784353852272, 0.02930433489382267, -0.012827507220208645, 0.050524309277534485, 0.01725723408162594, -0.017375724390149117, 0.0006004052702337503, -0.00...
59	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170769.txt	0120170769.txt	TXT	text/plain	12,851	Valery G.,1 Complainant, v. Ryan Zinke, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.	December 17, 2016	Appeal Number: 0120170769 Background: When Complainant initiated action on her equal employment opportunity (EEO) complaints, she worked as an Administrative Support Assistant, GS-7, in the Agency's Region 8 in Sacramento, California. On August 15, 2016, Complainant filed formal complaint DOI-FWS-16-0207 (Complaint 1). On April 29, 2016, she initiated EEO counseling on EEO informal complaint DOI-FWS-16-0473 (Complaint 2). Complaint 1 Complainant alleged she was harassed and discriminated against on her race/color (Black), disability, and reprisal for prior protected EEO activity when: 1. On October 6, 2010, Realty Staff were allowed to vote for her or a White applicant to fill Vacancy RE-10-371043-SG. 2. On November 1, 2010, after she applied for Vacancy Announcement R8-11-398722-SG, the selecting official said she did not read her resume. 3. On May 5, 2011, a Field Office Supervisor called her a "bitch" and said that was the reputation management gave her. 4. On January 28, 2016, she was notified by email of a planned administrative function reorganization that removed her from her position and replaced her with a White female. 5. On February 1, 2016, she was counseled on her tone of voice and told not to phone into any meetings when on leave. 6. On February 2, 2016, the Assistant Regional Director, Science Applications told her "If you want to move up, then you have to treat them differently, and prove to them that you deserve to get promoted." She was subjected to reprisal for prior EEO activity when: 7. On or about July 29, 2012 to May 31, 2016, the Deputy Regional Director failed to promote her (accretion of duties). She was discriminated against based on disability when: 8. From May 2015 to present, she was required to submit a daily task report when teleworking and is required to submit a new telework agreement every three months. Complaint 2 9. She was discriminated against on the bases of race/color, disability and/or reprisal when, on May 31, 2016, she was forced to retire. After initiating EEO counseling on Complaint 1, Complainant received her notice of right to file her complaint on March 28, 2016. The Agency advised her that she had 15 calendar days from her receipt of the notice to file her complaint, and gave contact information for doing so. Complainant filed Complaint 1 on August 15, 2016. The Agency dismissed Complaint 1 for failure to timely file the complaint. It reasoned that Complainant received notice of right to file Complaint 1 in March 2016, and did not do so until August 2016, beyond the 15-day time limit to do so. Complainant initiated EEO counseling by email on Complaint 2 on April 29, 2016, writing that she felt she was being forced to retire and was raising her claim within the 45-day time limit. The EEO counselor wrote that on May 6, 2016, Complainant called her saying she decided to withdraw her EEO complaint and "just wanted to forget the whole thing." The EEO counselor reportedly asked Complainant to send an email confirming her decision to withdraw her pre-complaint. On May 9, 2016, Complainant emailed the EEO counselor that she would like to withdraw her last grievance request, a reference to the pre-complaint - Complaint 2. On June 15, 2016, Complainant wrote the Director of the Fish & Wildlife Service, with copies to various people and organizations. She wrote, among other things, that every time she went the EEO route, which she suggested was over a period of years, she never succeeded in making a difference, the EEO process does not work, and she was forced to retire. The Agency dismissed Complaint 2 because Complainant withdrew it at the pre-complaint stage on May 9, 2016. Citing Commission precedent, the Agency found that once a complainant has withdrawn an informal complaint, absent a showing of coercion, she may not reactivate the EEO process by filing a formal complaint on the same issue.2 The Agency found the comments Complainant made in her June 15, 2016 letter confirm her intention was not to continue with the EEO process. The EEO counselor for Complaint 1 indicated that she presented to management specified remedies Complainant proposed, most of which were rejected, such as a promotion to GS-8, and back pay from July 2012. She wrote that the Agency proposed an alternate remedy - moving Complainant to a GS-7 position within the Business Operations and Technology Services. On appeal, Complainant writes that the EEO counselor informed her that after talking to management nothing further was going to happen with her complaint, albeit she was offered a position in the Business and Technology Services Unit. Complainant writes that she asked the counselor what happens next and she replied it was not going any higher and Complainant had 15 days to decide. Complainant contends that the EEO counselor for Complaint 1 coerced her to believe that the matter was done, deterring her from filing her complaint. Thereafter, Complainant signed the notice of right to file Complaint 1, indicating she received the notice. Regarding Complaint 2, Complainant writes that she did not know she had EEO rights as a retiree, and hence did not contact an EEO counselor. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. § 1614.604(c). Here, Complainant received her notice of right to file Complaint 1 by March 28, 2016, and filed it on August 16, 2016, far beyond the 15-calendar day time limit. Complainant argues, in essence, that the Agency is estopped from finding that she failed to timely file Complaint 1 since the EEO counselor dissuaded her from filing Complaint 1. This is not persuasive. Complainant's recitation of the conversation indicates that the EEO counselor advised her management was not granting her requested remedies, and resolution efforts were not going further, not that she should not file her complaint. The Agency's dismissal of Complaint 1 is affirmed. With regard to Complaint 2, a complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a complaint on the same issue. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Applying Allen, we affirm the dismissal of Complaint 2. We add that Complainant's explanation for not contacting an EEO counselor about Complaint 2 after she retired is not persuasive. On February 22, 2016, Complainant signed a notice of rights and responsibilities information sheet advising that allegations of discrimination involving acts or events occurring more than 45 days prior to when EEO counseling was requested may be dismissed. In her June 15, 2016 letter to the Director of the Fish & Wildlife Service, Complainant wrote that the EEO system does not work. We agree with the Agency that Complainant intentionally did not continue with the EEO process on Complaint 2. The FAD is AFFIRMED.	Valery G.,1 Complainant, v. Ryan Zinke, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 0120170769 Agency Nos. DOI-FWS-16-0207 & DOI-FWS-16-0473 DECISION On December 17, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 1, 2016, dismissing her complaints 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND When Complainant initiated action on her equal employment opportunity (EEO) complaints, she worked as an Administrative Support Assistant, GS-7, in the Agency's Region 8 in Sacramento, California. On August 15, 2016, Complainant filed formal complaint DOI-FWS-16-0207 (Complaint 1). On April 29, 2016, she initiated EEO counseling on EEO informal complaint DOI-FWS-16-0473 (Complaint 2). Complaint 1 Complainant alleged she was harassed and discriminated against on her race/color (Black), disability, and reprisal for prior protected EEO activity when: 1. On October 6, 2010, Realty Staff were allowed to vote for her or a White applicant to fill Vacancy RE-10-371043-SG. 2. On November 1, 2010, after she applied for Vacancy Announcement R8-11-398722-SG, the selecting official said she did not read her resume. 3. On May 5, 2011, a Field Office Supervisor called her a "bitch" and said that was the reputation management gave her. 4. On January 28, 2016, she was notified by email of a planned administrative function reorganization that removed her from her position and replaced her with a White female. 5. On February 1, 2016, she was counseled on her tone of voice and told not to phone into any meetings when on leave. 6. On February 2, 2016, the Assistant Regional Director, Science Applications told her "If you want to move up, then you have to treat them differently, and prove to them that you deserve to get promoted." She was subjected to reprisal for prior EEO activity when: 7. On or about July 29, 2012 to May 31, 2016, the Deputy Regional Director failed to promote her (accretion of duties). She was discriminated against based on disability when: 8. From May 2015 to present, she was required to submit a daily task report when teleworking and is required to submit a new telework agreement every three months. Complaint 2 9. She was discriminated against on the bases of race/color, disability and/or reprisal when, on May 31, 2016, she was forced to retire. After initiating EEO counseling on Complaint 1, Complainant received her notice of right to file her complaint on March 28, 2016. The Agency advised her that she had 15 calendar days from her receipt of the notice to file her complaint, and gave contact information for doing so. Complainant filed Complaint 1 on August 15, 2016. The Agency dismissed Complaint 1 for failure to timely file the complaint. It reasoned that Complainant received notice of right to file Complaint 1 in March 2016, and did not do so until August 2016, beyond the 15-day time limit to do so. Complainant initiated EEO counseling by email on Complaint 2 on April 29, 2016, writing that she felt she was being forced to retire and was raising her claim within the 45-day time limit. The EEO counselor wrote that on May 6, 2016, Complainant called her saying she decided to withdraw her EEO complaint and "just wanted to forget the whole thing." The EEO counselor reportedly asked Complainant to send an email confirming her decision to withdraw her pre-complaint. On May 9, 2016, Complainant emailed the EEO counselor that she would like to withdraw her last grievance request, a reference to the pre-complaint - Complaint 2. On June 15, 2016, Complainant wrote the Director of the Fish & Wildlife Service, with copies to various people and organizations. She wrote, among other things, that every time she went the EEO route, which she suggested was over a period of years, she never succeeded in making a difference, the EEO process does not work, and she was forced to retire. The Agency dismissed Complaint 2 because Complainant withdrew it at the pre-complaint stage on May 9, 2016. Citing Commission precedent, the Agency found that once a complainant has withdrawn an informal complaint, absent a showing of coercion, she may not reactivate the EEO process by filing a formal complaint on the same issue.2 The Agency found the comments Complainant made in her June 15, 2016 letter confirm her intention was not to continue with the EEO process. The EEO counselor for Complaint 1 indicated that she presented to management specified remedies Complainant proposed, most of which were rejected, such as a promotion to GS-8, and back pay from July 2012. She wrote that the Agency proposed an alternate remedy - moving Complainant to a GS-7 position within the Business Operations and Technology Services. On appeal, Complainant writes that the EEO counselor informed her that after talking to management nothing further was going to happen with her complaint, albeit she was offered a position in the Business and Technology Services Unit. Complainant writes that she asked the counselor what happens next and she replied it was not going any higher and Complainant had 15 days to decide. Complainant contends that the EEO counselor for Complaint 1 coerced her to believe that the matter was done, deterring her from filing her complaint. Thereafter, Complainant signed the notice of right to file Complaint 1, indicating she received the notice. Regarding Complaint 2, Complainant writes that she did not know she had EEO rights as a retiree, and hence did not contact an EEO counselor. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. § 1614.604(c). Here, Complainant received her notice of right to file Complaint 1 by March 28, 2016, and filed it on August 16, 2016, far beyond the 15-calendar day time limit. Complainant argues, in essence, that the Agency is estopped from finding that she failed to timely file Complaint 1 since the EEO counselor dissuaded her from filing Complaint 1. This is not persuasive. Complainant's recitation of the conversation indicates that the EEO counselor advised her management was not granting her requested remedies, and resolution efforts were not going further, not that she should not file her complaint. The Agency's dismissal of Complaint 1 is affirmed. With regard to Complaint 2, a complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a complaint on the same issue. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Applying Allen, we affirm the dismissal of Complaint 2. We add that Complainant's explanation for not contacting an EEO counselor about Complaint 2 after she retired is not persuasive. On February 22, 2016, Complainant signed a notice of rights and responsibilities information sheet advising that allegations of discrimination involving acts or events occurring more than 45 days prior to when EEO counseling was requested may be dismissed. In her June 15, 2016 letter to the Director of the Fish & Wildlife Service, Complainant wrote that the EEO system does not work. We agree with the Agency that Complainant intentionally did not continue with the EEO process on Complaint 2. 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 20, 2017 __________________ Date 2 Complainant attached her June 15, 2016 letter to the complaint she filed on August 16, 2016. In the letter, Complainant wrote she was forced to retire. The Agency construed this as alleging she raised issue 9 in this complaint. On appeal, Complainant indicates she raised this matter in in the letter. While Complainant discussed the matter therein, we find that she did not have intent at that time to enter the EEO process. ------------------------------------------------------------ ------------------------------------------------------------	[ "Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.106", "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. § 791" ]	[ -0.07669832557439804, 0.09735002368688583, 0.027743373066186905, 0.051508139818906784, 0.006844643969088793, 0.014326104894280434, 0.02532443404197693, 0.001633128966204822, -0.006121892482042313, 0.017991803586483, 0.005085569806396961, -0.05599680170416832, -0.04937851056456566, 0.012452...
60	https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024002471.pdf	2024002471.pdf	PDF	application/pdf	12,879	Gabriele G,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency.	February 12, 2024	Appeal Number: 2024002471 Background: At the time of events giving rise to this complaint, Complainant worked as a Store Manager at the Navy Exchange (NEX) in Guantanamo Bay, Cuba. On January 16, 2024, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of race (Asian), national origin ( Philippines ), and reprisal for prior protected EEO when: a. In late November 2022, she raised concerns to District Vice President (DVP) and District Human Resources Manager of her direct supervisor’s conduct when she submitted her resignation as Associate Satisfaction Survey (ASI) Champion and was instructed to proceed with accomplishing the ASI goals as her “resignation is not accepted”; b. On or around December 2022, her direct supervisor found ways to impede the impl ementation of ASI goals through “various tactics” to ensure ASI projects were not executed despite having been instructed by the DVP not to interfere with the Committee’s function; c. In April 2023, she was issued an “unfairly low” performance evaluation that included “adverse comments” by her direct supervisor; d. On July 6, 2023, she was issued a 14 Calendar Day Advanced Notice of Proposed Disciplinary Action by her direct supervisor that “recommended the harshest disciplinary action” for a first offense and did not address “the existence of factors that could have mitigated fault and/or exonerated [ Complainant] of the offense”; and e. On July 18, 2023, she was forced to resign “rather than take the risk of getting terminated” because she was not confident that her appeal would be processed fairly by her direct supervisor. The Agency dismissed the complaint for untimely EEO Counselor contact beyond the 45 -day limitation period . Specifically, the Agency noted that Complainant did not contact the NEXCOM EEO Office until September 11, 2023. Complainant explained that when she attempt ed to send a complaint to the Office of Special Counsel (OSC) and the Inspector General (IG) did not respond , she “ started contacting EEO Offices ” on September 12, 2023, when she called the Navy and CNIC EEO Offices. The Agency maintained that Complainant’s efforts in contacting O ffices such as OSC and IG indicate that nothing prevented her from contacting an EEO Counselor from the NEXCOM EEO Office within the 45 -day time limit. As the last discriminatory act Complainant alleged occurred on July 18, 2023, and Complainant did not contact an EEO Counselor until September 11, 2023, she was required to contact an EEO Counselor no later than September 4, 2023 to have made timely EEO Cou nselor contact on he r claim (as the 45th day fell on a weekend). Instead, Complainant’s contact with an EEO Counselor occurred seven (7) days too late, that is seven days past the 45- day time limit required under EEO regulations . Furthermore, Complainant had constructive knowledge of the EEO Counselor contact time limit because she completed EEO & No Fear Act Training on the NEXCOM Learn System on September 13, 2022. This training included an EEO & No Fear Act Training slide outlining the regulatory 45 -day timeframe to initiate contact with an EEO Counselor. Similarly, the Agency’s EEO Policy highlights the EEO Counselor contact time limit on EEO Policy Posters posted on visible bulletin boards at multiple NEXCOM locations on the Guantanamo Bay installation, to include the site Complainant directly managed. Complainant constructively knew of the need to contact an EEO Counselor within 45 days of an alleged discriminatory act. CONTENTIONS ON APPEAL Complainant through her representative asserts that “S he thought that the IG Office did not have jurisdiction on her case as the reason for their delayed response. She had reservations on contacting the EE O Office believing it would not handle her non -discrimination complaint.” In response, t he Agency asks that we affirm its final decision. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the re cord without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. Legal Analysis: Upon review, the Commission finds that Complainant's complaint was properly dismissed for untimely EEO Counselor contac t. ISSUES PRESENTED Whether the Agency’s final decision properly dismissed Complainant’s formal complaint on the grounds of untimely EEO Counselor contact 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 Store Manager at the Navy Exchange (NEX) in Guantanamo Bay, Cuba. On January 16, 2024, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of race (Asian), national origin ( Philippines ), and reprisal for prior protected EEO when: a. In late November 2022, she raised concerns to District Vice President (DVP) and District Human Resources Manager of her direct supervisor’s conduct when she submitted her resignation as Associate Satisfaction Survey (ASI) Champion and was instructed to proceed with accomplishing the ASI goals as her “resignation is not accepted”; b. On or around December 2022, her direct supervisor found ways to impede the impl ementation of ASI goals through “various tactics” to ensure ASI projects were not executed despite having been instructed by the DVP not to interfere with the Committee’s function; c. In April 2023, she was issued an “unfairly low” performance evaluation that included “adverse comments” by her direct supervisor; d. On July 6, 2023, she was issued a 14 Calendar Day Advanced Notice of Proposed Disciplinary Action by her direct supervisor that “recommended the harshest disciplinary action” for a first offense and did not address “the existence of factors that could have mitigated fault and/or exonerated [ Complainant] of the offense”; and e. On July 18, 2023, she was forced to resign “rather than take the risk of getting terminated” because she was not confident that her appeal would be processed fairly by her direct supervisor. The Agency dismissed the complaint for untimely EEO Counselor contact beyond the 45 -day limitation period . Specifically, the Agency noted that Complainant did not contact the NEXCOM EEO Office until September 11, 2023. Complainant explained that when she attempt ed to send a complaint to the Office of Special Counsel (OSC) and the Inspector General (IG) did not respond , she “ started contacting EEO Offices ” on September 12, 2023, when she called the Navy and CNIC EEO Offices. The Agency maintained that Complainant’s efforts in contacting O ffices such as OSC and IG indicate that nothing prevented her from contacting an EEO Counselor from the NEXCOM EEO Office within the 45 -day time limit. As the last discriminatory act Complainant alleged occurred on July 18, 2023, and Complainant did not contact an EEO Counselor until September 11, 2023, she was required to contact an EEO Counselor no later than September 4, 2023 to have made timely EEO Cou nselor contact on he r claim (as the 45th day fell on a weekend). Instead, Complainant’s contact with an EEO Counselor occurred seven (7) days too late, that is seven days past the 45- day time limit required under EEO regulations . Furthermore, Complainant had constructive knowledge of the EEO Counselor contact time limit because she completed EEO & No Fear Act Training on the NEXCOM Learn System on September 13, 2022. This training included an EEO & No Fear Act Training slide outlining the regulatory 45 -day timeframe to initiate contact with an EEO Counselor. Similarly, the Agency’s EEO Policy highlights the EEO Counselor contact time limit on EEO Policy Posters posted on visible bulletin boards at multiple NEXCOM locations on the Guantanamo Bay installation, to include the site Complainant directly managed. Complainant constructively knew of the need to contact an EEO Counselor within 45 days of an alleged discriminatory act. CONTENTIONS ON APPEAL Complainant through her representative asserts that “S he thought that the IG Office did not have jurisdiction on her case as the reason for their delayed response. She had reservations on contacting the EE O Office believing it would not handle her non -discrimination complaint.” In response, t he Agency asks that we affirm its final decision. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the re cord without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. 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 for ty-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 s he was not notified of the time limits and was not otherwise aware of them, that s he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence s he was prevented by circumstances beyond h er control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record discloses that the alleged , most recent discriminatory event occurred on July 18, 2023, but Complainant did not initia te contact with an EEO Counselor until September 11, 2023, which is beyond the forty -five (45) day limitation period. Complainant’s appeal statement and the record reflect that she delayed contacting the EEO Office because s he opted to pursue resolution t hrough OSC and the Agency’s IG Office . However, 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). Complainant has not provided sufficient justification for extending or tolling the time limit. Therefore, we find that the Agency properly dismissed the complaint for untimely EEO Counse lor contact. Final Decision: Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.	Gabriele G,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2024002471 Agency No. DON 23 -00250- 01393 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 12, 2024, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed for untimely EEO Counselor contac t. ISSUES PRESENTED Whether the Agency’s final decision properly dismissed Complainant’s formal complaint on the grounds of untimely EEO Counselor contact 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 Store Manager at the Navy Exchange (NEX) in Guantanamo Bay, Cuba. On January 16, 2024, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of race (Asian), national origin ( Philippines ), and reprisal for prior protected EEO when: a. In late November 2022, she raised concerns to District Vice President (DVP) and District Human Resources Manager of her direct supervisor’s conduct when she submitted her resignation as Associate Satisfaction Survey (ASI) Champion and was instructed to proceed with accomplishing the ASI goals as her “resignation is not accepted”; b. On or around December 2022, her direct supervisor found ways to impede the impl ementation of ASI goals through “various tactics” to ensure ASI projects were not executed despite having been instructed by the DVP not to interfere with the Committee’s function; c. In April 2023, she was issued an “unfairly low” performance evaluation that included “adverse comments” by her direct supervisor; d. On July 6, 2023, she was issued a 14 Calendar Day Advanced Notice of Proposed Disciplinary Action by her direct supervisor that “recommended the harshest disciplinary action” for a first offense and did not address “the existence of factors that could have mitigated fault and/or exonerated [ Complainant] of the offense”; and e. On July 18, 2023, she was forced to resign “rather than take the risk of getting terminated” because she was not confident that her appeal would be processed fairly by her direct supervisor. The Agency dismissed the complaint for untimely EEO Counselor contact beyond the 45 -day limitation period . Specifically, the Agency noted that Complainant did not contact the NEXCOM EEO Office until September 11, 2023. Complainant explained that when she attempt ed to send a complaint to the Office of Special Counsel (OSC) and the Inspector General (IG) did not respond , she “ started contacting EEO Offices ” on September 12, 2023, when she called the Navy and CNIC EEO Offices. The Agency maintained that Complainant’s efforts in contacting O ffices such as OSC and IG indicate that nothing prevented her from contacting an EEO Counselor from the NEXCOM EEO Office within the 45 -day time limit. As the last discriminatory act Complainant alleged occurred on July 18, 2023, and Complainant did not contact an EEO Counselor until September 11, 2023, she was required to contact an EEO Counselor no later than September 4, 2023 to have made timely EEO Cou nselor contact on he r claim (as the 45th day fell on a weekend). Instead, Complainant’s contact with an EEO Counselor occurred seven (7) days too late, that is seven days past the 45- day time limit required under EEO regulations . Furthermore, Complainant had constructive knowledge of the EEO Counselor contact time limit because she completed EEO & No Fear Act Training on the NEXCOM Learn System on September 13, 2022. This training included an EEO & No Fear Act Training slide outlining the regulatory 45 -day timeframe to initiate contact with an EEO Counselor. Similarly, the Agency’s EEO Policy highlights the EEO Counselor contact time limit on EEO Policy Posters posted on visible bulletin boards at multiple NEXCOM locations on the Guantanamo Bay installation, to include the site Complainant directly managed. Complainant constructively knew of the need to contact an EEO Counselor within 45 days of an alleged discriminatory act. CONTENTIONS ON APPEAL Complainant through her representative asserts that “S he thought that the IG Office did not have jurisdiction on her case as the reason for their delayed response. She had reservations on contacting the EE O Office believing it would not handle her non -discrimination complaint.” In response, t he Agency asks that we affirm its final decision. STANDARD OF REVIEW The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the re cord without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. 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 for ty-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 s he was not notified of the time limits and was not otherwise aware of them, that s he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence s he was prevented by circumstances beyond h er control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record discloses that the alleged , most recent discriminatory event occurred on July 18, 2023, but Complainant did not initia te contact with an EEO Counselor until September 11, 2023, which is beyond the forty -five (45) day limitation period. Complainant’s appeal statement and the record reflect that she delayed contacting the EEO Office because s he opted to pursue resolution t hrough OSC and the Agency’s IG Office . However, 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). Complainant has not provided sufficient justification for extending or tolling the time limit. Therefore, we find that the Agency properly dismissed the complaint for untimely EEO Counse lor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0124.1) 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 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 their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit their 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 their 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) You have the rig ht 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 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 pr oceed 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 cos ts 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 ti tled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s si Carlton M. Hadden, Director Office of Federal Operations August 27, 2024 Date	[ "Cobb v. Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997)", "Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)", "EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614...	[ -0.11806189268827438, 0.07759292423725128, -0.0156718697398901, 0.06071505323052406, -0.00828502606600523, 0.028253868222236633, 0.02342534437775612, -0.0018829640466719866, 0.001029397826641798, 0.03410915657877922, 0.04908056929707527, -0.03241433948278427, 0.012625095434486866, 0.034898...
61	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05a50553.txt	05a50553.txt	TXT	text/plain	14,694	05 . Michael Watts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	January 31, 2005	Appeal Number: 01A50326 Background: Complainant filed a formal complaint alleging that he was discriminated against based on sex, age (DOB: 8-1-1952) and disability (perceived back) with regard to events that occurred between August 23, 2003 and April 21, 2004. Specifically, complainant alleged that, on August 23, 2003, his supervisor told him to leave the facility and not return because of his physical limitations, which were caused by an on the job injury; he received a letter indicating that he could voluntarily resign or medically retire; on February 16, 2004, he received a letter of warning; and on April 21, 2004, his supervisor altered his PS Form 3971 from 24 hours of leave to 40 hours. Complainant's initial contact with an EEO counselor occurred on July 9, 2004. In its final decision (FAD), the agency dismissed complainant's complaint on the grounds of untimely counselor contact. The agency maintained that complainant was aware [o]r should have been aware of the time limit for contacting an EEO counselor, as posters, including the 45-day time limit were clearly on display at the Post Office where you work.<1> On appeal, complainant argued that he had no actual knowledge of the time limit for contacting an EEO counselor. He also disputed the agency's contention that an EEO poster with all required information was on display at his facility. According to complainant, he only learned of the 45-day time limitation period after speaking to an attorney on July 5, 2004. The attorney advised complainant to ascertain whether or not an EEO poster containing information on the 45-day time limit and other information was at his facility. Complainant indicated that, on July 7, 2004, he returned to work and proceeded to search for an EEO poster, but was unable to find one. He asked C-1, a co-worker, to help him in his search, but C-1 was also unable to find a poster. At this point, complainant contacted his union representative, C-2. She came to the facility and searched with C-3, another co-worker, but they were also unable to locate a poster.<2> A-1, a management official, provided an affidavit indicating that, in early July, she was asked by complainant if she knew where the EEO poster was displayed. According to A-1, they went to the window clerk time clock and found the poster displayed on the board above the time clock. A-1 indicated that the clerks and carriers passed by the area in order to go to the swing room or to the window section of the building. A-1 stated that: The poster was partially covered. The top portion was visible with the letters EEO. The bottom portion [was] covered. The poster was always on display at this area, but I am unaware as to how long it had been partially covered. I immediately uncovered the poster so that it was again in full view. A-2, the Lead Supervisor at the facility, stated that: I was first made aware that the EEO poster was allegedly not posted in early July of 2004. I did not personally verify if the EEO poster was displayed. I do not know if the EEO poster was displayed. I do not know if the poster was in full view or not. When informed of the alleged problem, I asked the secretary of the postmaster . . . if the poster was on display under locked glass. She told me it was not. I told her to put it under glass. She did and I verified it was done.<3> C-2 filed a class grievance against management on July 16, 2004. That same day, C-2 and A-1 entered into a settlement agreement that resolved the grievance. The parties agreed that, from this day forward the official posting of Equal Employment Opportunity will be posted in a centralized area to be viewed by all employees of this facility. The previous decision, without discussing the agency's reliance on the constructive notice rule, affirmed the dismissal of complainant's complaint. The previous decision also implied that complainant was using the EEO process to either challenge or to seek enforcement of the grievance decision. In his request for reconsideration, complainant, through his attorney, argued that the previous decision involved a clearly erroneous interpretation of material fact and law. Complainant stated that: The sole legal issue on appeal was whether complainant was entitled to an equitable tolling of the 45-day time limit to seek counseling due to the agency's failure to permanently publicize to all employees and post at all times the names, business telephone numbers, and business addresses of EEO counselors, a notice of the time limits, and the necessity of contacting a counselor before filing a complaint per 29 C.F.R. § 1614.102(b)(7). According to complainant, the previous decision did not address the matters raised on appeal concerning the agency's failure to post applicable EEO information. Finally, complainant argued that the previous decision mistakenly interpreted his claim as one challenging the grievance. Complainant indicated that the information about the grievance was proffered solely as evidentiary support to his claim for equitable tolling as it clearly evidenced Postal management's admission there was no EEO poster up at the facility. 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(b). 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(b), and it is the decision of the Commission to grant the request. ISSUE PRESENTED Whether the previous decision erred by not equitably tolling the 45-day time limitation period for complainant to seek EEO counseling. BACKGROUND Complainant filed a formal complaint alleging that he was discriminated against based on sex, age (DOB: 8-1-1952) and disability (perceived back) with regard to events that occurred between August 23, 2003 and April 21, 2004. Specifically, complainant alleged that, on August 23, 2003, his supervisor told him to leave the facility and not return because of his physical limitations, which were caused by an on the job injury; he received a letter indicating that he could voluntarily resign or medically retire; on February 16, 2004, he received a letter of warning; and on April 21, 2004, his supervisor altered his PS Form 3971 from 24 hours of leave to 40 hours. Complainant's initial contact with an EEO counselor occurred on July 9, 2004. In its final decision (FAD), the agency dismissed complainant's complaint on the grounds of untimely counselor contact. The agency maintained that complainant was aware [o]r should have been aware of the time limit for contacting an EEO counselor, as posters, including the 45-day time limit were clearly on display at the Post Office where you work.<1> On appeal, complainant argued that he had no actual knowledge of the time limit for contacting an EEO counselor. He also disputed the agency's contention that an EEO poster with all required information was on display at his facility. According to complainant, he only learned of the 45-day time limitation period after speaking to an attorney on July 5, 2004. The attorney advised complainant to ascertain whether or not an EEO poster containing information on the 45-day time limit and other information was at his facility. Complainant indicated that, on July 7, 2004, he returned to work and proceeded to search for an EEO poster, but was unable to find one. He asked C-1, a co-worker, to help him in his search, but C-1 was also unable to find a poster. At this point, complainant contacted his union representative, C-2. She came to the facility and searched with C-3, another co-worker, but they were also unable to locate a poster.<2> A-1, a management official, provided an affidavit indicating that, in early July, she was asked by complainant if she knew where the EEO poster was displayed. According to A-1, they went to the window clerk time clock and found the poster displayed on the board above the time clock. A-1 indicated that the clerks and carriers passed by the area in order to go to the swing room or to the window section of the building. A-1 stated that: The poster was partially covered. The top portion was visible with the letters EEO. The bottom portion [was] covered. The poster was always on display at this area, but I am unaware as to how long it had been partially covered. I immediately uncovered the poster so that it was again in full view. A-2, the Lead Supervisor at the facility, stated that: I was first made aware that the EEO poster was allegedly not posted in early July of 2004. I did not personally verify if the EEO poster was displayed. I do not know if the EEO poster was displayed. I do not know if the poster was in full view or not. When informed of the alleged problem, I asked the secretary of the postmaster . . . if the poster was on display under locked glass. She told me it was not. I told her to put it under glass. She did and I verified it was done.<3> C-2 filed a class grievance against management on July 16, 2004. That same day, C-2 and A-1 entered into a settlement agreement that resolved the grievance. The parties agreed that, from this day forward the official posting of Equal Employment Opportunity will be posted in a centralized area to be viewed by all employees of this facility. The previous decision, without discussing the agency's reliance on the constructive notice rule, affirmed the dismissal of complainant's complaint. The previous decision also implied that complainant was using the EEO process to either challenge or to seek enforcement of the grievance decision. In his request for reconsideration, complainant, through his attorney, argued that the previous decision involved a clearly erroneous interpretation of material fact and law. Complainant stated that: The sole legal issue on appeal was whether complainant was entitled to an equitable tolling of the 45-day time limit to seek counseling due to the agency's failure to permanently publicize to all employees and post at all times the names, business telephone numbers, and business addresses of EEO counselors, a notice of the time limits, and the necessity of contacting a counselor before filing a complaint per 29 C.F.R. § 1614.102(b)(7). According to complainant, the previous decision did not address the matters raised on appeal concerning the agency's failure to post applicable EEO information. Finally, complainant argued that the previous decision mistakenly interpreted his claim as one challenging the grievance. Complainant indicated that the information about the grievance was proffered solely as evidentiary support to his claim for equitable tolling as it clearly evidenced Postal management's admission there was no EEO poster up at the facility. ANALYSIS The Commission finds that complainant's request for reconsideration does meet the regulatory criterion of 29 C.F.R. § 1614.405(b)(1). In the present case, there is no evidence that complainant had actual knowledge of EEO regulations and procedures pertaining to the 45-day time limitation period for contacting an EEO counselor. The agency relied solely on the constructive notice rule to find that complainant contacted the EEO counselor in an untimely manner. After a careful review of the evidence and the arguments submitted by the parties both on appeal and pursuant to this request for reconsideration, we find that the agency erred by applying the constructive notice rule in this case. The record contains too many contradictory statements about the EEO poster, during the period in question, to allow the agency to apply the constructive notice rule. Even assuming, arquendo, that the agency's version of these events is correct, A-1 stated that the EEO poster was partially covered up by other materials. Thus, we are left with the Final Decision: Accordingly, we will exercise our discretion in this matter and find that complainant has presented an adequate justification for extending the time limit for seeking EEO counseling, beyond 45 days, to July 9, 2004. 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(b), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 01A50326 and the agency's final action/decision are reversed.	Michael Watts v. United States Postal Service 05A50553 08-18-05 . Michael Watts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Request No. 05A50553 Appeal No. 01A50326 Agency No. 4J-480-0095-04 GRANT Michael Watts (complainant) timely requested reconsideration of the decision in Michael Watts v. United States Postal Service, EEOC Appeal No. 01A50326 (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). 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(b), and it is the decision of the Commission to grant the request. ISSUE PRESENTED Whether the previous decision erred by not equitably tolling the 45-day time limitation period for complainant to seek EEO counseling. BACKGROUND Complainant filed a formal complaint alleging that he was discriminated against based on sex, age (DOB: 8-1-1952) and disability (perceived back) with regard to events that occurred between August 23, 2003 and April 21, 2004. Specifically, complainant alleged that, on August 23, 2003, his supervisor told him to leave the facility and not return because of his physical limitations, which were caused by an on the job injury; he received a letter indicating that he could voluntarily resign or medically retire; on February 16, 2004, he received a letter of warning; and on April 21, 2004, his supervisor altered his PS Form 3971 from 24 hours of leave to 40 hours. Complainant's initial contact with an EEO counselor occurred on July 9, 2004. In its final decision (FAD), the agency dismissed complainant's complaint on the grounds of untimely counselor contact. The agency maintained that complainant was aware [o]r should have been aware of the time limit for contacting an EEO counselor, as posters, including the 45-day time limit were clearly on display at the Post Office where you work.<1> On appeal, complainant argued that he had no actual knowledge of the time limit for contacting an EEO counselor. He also disputed the agency's contention that an EEO poster with all required information was on display at his facility. According to complainant, he only learned of the 45-day time limitation period after speaking to an attorney on July 5, 2004. The attorney advised complainant to ascertain whether or not an EEO poster containing information on the 45-day time limit and other information was at his facility. Complainant indicated that, on July 7, 2004, he returned to work and proceeded to search for an EEO poster, but was unable to find one. He asked C-1, a co-worker, to help him in his search, but C-1 was also unable to find a poster. At this point, complainant contacted his union representative, C-2. She came to the facility and searched with C-3, another co-worker, but they were also unable to locate a poster.<2> A-1, a management official, provided an affidavit indicating that, in early July, she was asked by complainant if she knew where the EEO poster was displayed. According to A-1, they went to the window clerk time clock and found the poster displayed on the board above the time clock. A-1 indicated that the clerks and carriers passed by the area in order to go to the swing room or to the window section of the building. A-1 stated that: The poster was partially covered. The top portion was visible with the letters EEO. The bottom portion [was] covered. The poster was always on display at this area, but I am unaware as to how long it had been partially covered. I immediately uncovered the poster so that it was again in full view. A-2, the Lead Supervisor at the facility, stated that: I was first made aware that the EEO poster was allegedly not posted in early July of 2004. I did not personally verify if the EEO poster was displayed. I do not know if the EEO poster was displayed. I do not know if the poster was in full view or not. When informed of the alleged problem, I asked the secretary of the postmaster . . . if the poster was on display under locked glass. She told me it was not. I told her to put it under glass. She did and I verified it was done.<3> C-2 filed a class grievance against management on July 16, 2004. That same day, C-2 and A-1 entered into a settlement agreement that resolved the grievance. The parties agreed that, from this day forward the official posting of Equal Employment Opportunity will be posted in a centralized area to be viewed by all employees of this facility. The previous decision, without discussing the agency's reliance on the constructive notice rule, affirmed the dismissal of complainant's complaint. The previous decision also implied that complainant was using the EEO process to either challenge or to seek enforcement of the grievance decision. In his request for reconsideration, complainant, through his attorney, argued that the previous decision involved a clearly erroneous interpretation of material fact and law. Complainant stated that: The sole legal issue on appeal was whether complainant was entitled to an equitable tolling of the 45-day time limit to seek counseling due to the agency's failure to permanently publicize to all employees and post at all times the names, business telephone numbers, and business addresses of EEO counselors, a notice of the time limits, and the necessity of contacting a counselor before filing a complaint per 29 C.F.R. § 1614.102(b)(7). According to complainant, the previous decision did not address the matters raised on appeal concerning the agency's failure to post applicable EEO information. Finally, complainant argued that the previous decision mistakenly interpreted his claim as one challenging the grievance. Complainant indicated that the information about the grievance was proffered solely as evidentiary support to his claim for equitable tolling as it clearly evidenced Postal management's admission there was no EEO poster up at the facility. ANALYSIS The Commission finds that complainant's request for reconsideration does meet the regulatory criterion of 29 C.F.R. § 1614.405(b)(1). In the present case, there is no evidence that complainant had actual knowledge of EEO regulations and procedures pertaining to the 45-day time limitation period for contacting an EEO counselor. The agency relied solely on the constructive notice rule to find that complainant contacted the EEO counselor in an untimely manner. After a careful review of the evidence and the arguments submitted by the parties both on appeal and pursuant to this request for reconsideration, we find that the agency erred by applying the constructive notice rule in this case. The record contains too many contradictory statements about the EEO poster, during the period in question, to allow the agency to apply the constructive notice rule. Even assuming, arquendo, that the agency's version of these events is correct, A-1 stated that the EEO poster was partially covered up by other materials. Thus, we are left with the conclusion that at least some of the information that the agency was required to provided to its employees was obstructed.<4> Prior to A-2 directing that the poster be moved and A-1 entering into a settlement agreement with the union, we simply have no guarantee that the agency was in compliance with the Commission's directive that it publicize and post the information that complainant needed in order to engage in the EEO process in a timely manner.<5> EEOC Regulation 29 C.F.R. § 1614.604(c) provides that all time limits are subject to waiver, estoppel and equitable tolling. Accordingly, we will exercise our discretion in this matter and find that complainant has presented an adequate justification for extending the time limit for seeking EEO counseling, beyond 45 days, to July 9, 2004. 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(b), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 01A50326 and the agency's final action/decision are reversed. Complainant's complaint will be remanded for further processing in accordance with the Order below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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. 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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat _____08-18-05_____________ Date 1According to the Dispute Resolution Specialist's Report (DRSR) in the file, the presence of the EEO poster was verified in August 2003. The Commission has previously held that under the constructive notice rule even if an employee has no actual knowledge of EEO deadlines, the fact that the agency posted notices containing such information is sufficient to trigger his duty to comply with the deadlines. Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990). 2C-2 and C-3 both provided unsworn statements in support of complainant. 3The DRSR erroneously indicated that A-2, upon being notified that there was problem, went to bulletin board and found that the poster was partially covered and immediately corrected the situation by moving the other posting so that the EEO poster was in full view. 4The record contains a copy of a poster that, presumably, is identical to the one on display at complainant's facility. A-1 maintained that EEOwas visible, but that the bottom portion of the poster was covered. Without a more detailed description from A-1 regarding what she believes constitutes the bottom portion of the poster, we are unable to ascertain what information was obscured. 5We note in this regard the testimony of A-2 that I did not personally verify if the EEO poster was displayed. I do not know if the EEO poster was displayed. I do not know if the poster was in full view or not.	[ "Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)", "29 C.F.R. § 1614.405(b)", "29 C.F.R. § 1614.102(b)", "29 C.F.R. § 1614.604(c)", "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", "42 U.S.C. § 2000e", "29 U.S.C. §§...	[ -0.04842032864689827, 0.06051895394921303, 0.030738532543182373, 0.018543506041169167, -0.034220486879348755, 0.0024682271759957075, -0.025870896875858307, 0.0079902783036232, -0.011004937812685966, 0.01911294460296631, -0.0012905881740152836, 0.03969421982765198, -0.07633407413959503, 0.0...
62	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976279.txt	01976279.txt	TXT	text/plain	12,738		October 7, 1998	Appeal Number: 01976279 Case Facts: Appellant filed the instant appeal from the agency's July 18, 1997 decision dismissing appellant's complaint for failure to timely contact an EEO Counselor. This complaint was the subject of a prior Commission decision in Bibeau v. United States Postal Serv., EEOC Appeal No. 01966049 (Apr. 23, 1997). In EEOC Appeal No. 01966049 the Commission stated: Legal Analysis: the Commission stated: 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 45 day time limit shall be extended when the individual shows that he was not notified of the time limits and was not otherwise aware of them or that he did not know and reasonably should not have known that the discriminatory matter occurred. 29 C.F.R. §1614.105(a)(2). . . . . The complaint concerns the agency's alleged discriminatory failure to hire appellant in July 1995. Appellant initially contacted an EEO Counselor on May 14, 1996. . . . Appellant also argues that he was unaware of the 45 day deadline for contacting an EEO Counselor. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its 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)). In the instant case, the agency stated in its dismissal that EEO posters containing the time limits were on display and that appellant was provided with EEO information during the orientation period. The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Serv., EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113 S. Ct. 1940 (1993)). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. In the instant matter the agency has failed to produce any evidence showing that appellant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency has not supplied a copy of the EEO poster(s) or an affidavit describing the poster(s). The agency has not supplied a copy of the EEO information purportedly provided to appellant during the orientation period or any evidence showing that appellant received such information. Therefore, we can not find that appellant had actual or constructive notice of the time limits for contacting an EEO Counselor. The Commission shall remand the complaint to the agency so that it may supplement the record with evidence showing whether appellant had actual or constructive notice of the time limit for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Bibeau, EEOC Appeal No. 01966049. The agency has submitted an affidavit, photographs of EEO posters, copies of materials from a training booklet, and copies of EEO posters. The affidavit from Person A dated May 28, 1997 does not claim that the EEO posters were posted more than 45 days before appellant initially contacted an EEO Counselor on May 14, 1996. There is no affidavit in the record stating the EEO posters in the record or other EEO information containing time deadlines were ever posted or distributed to appellant more than 45 days prior to May 14, 1996. Although Person A refers in the affidavit to "stand-up talks," Person A does not state that the talks occurred 45 days prior to May 14, 1996 or that the talks explained the time deadline for contacting an EEO Counselor. Page 21 of the training booklet, the page relied upon by the agency in its decision, does not provide information on the time deadline for contacting an EEO Counselor. The Commission finds that the agency has failed to show that appellant had actual or constructive notice of the time limits for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Thus, we can not find that appellant failed to timely contact an EEO Counselor. The agency has had two opportunities to submit a record to the Commission showing that appellant had actual or constructive notice of the time deadline for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Because the agency has failed to make such a showing, we shall reverse the agency's decision and order the agency to resume processing the complaint. The agency's decision dismissing the complaint is REVERSED and we REMAND the complaint to the agency for further processing in accordance with this decision and applicable regulations. ORDER (E1092) The agency is ORDERED to process the remanded allegations in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations 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© (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.	Charles A. Bibeau v. United States Postal Service 01976279 October 7, 1998 Charles A. Bibeau, ) Appellant, ) ) v. ) Appeal No. 01976279 ) Agency No. 4-H-310-1146-96 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) _________________________________) DECISION Appellant filed the instant appeal from the agency's July 18, 1997 decision dismissing appellant's complaint for failure to timely contact an EEO Counselor. This complaint was the subject of a prior Commission decision in Bibeau v. United States Postal Serv., EEOC Appeal No. 01966049 (Apr. 23, 1997). In EEOC Appeal No. 01966049 the Commission stated: 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 45 day time limit shall be extended when the individual shows that he was not notified of the time limits and was not otherwise aware of them or that he did not know and reasonably should not have known that the discriminatory matter occurred. 29 C.F.R. §1614.105(a)(2). . . . . The complaint concerns the agency's alleged discriminatory failure to hire appellant in July 1995. Appellant initially contacted an EEO Counselor on May 14, 1996. . . . Appellant also argues that he was unaware of the 45 day deadline for contacting an EEO Counselor. It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its 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)). In the instant case, the agency stated in its dismissal that EEO posters containing the time limits were on display and that appellant was provided with EEO information during the orientation period. The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Serv., EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113 S. Ct. 1940 (1993)). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. In the instant matter the agency has failed to produce any evidence showing that appellant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency has not supplied a copy of the EEO poster(s) or an affidavit describing the poster(s). The agency has not supplied a copy of the EEO information purportedly provided to appellant during the orientation period or any evidence showing that appellant received such information. Therefore, we can not find that appellant had actual or constructive notice of the time limits for contacting an EEO Counselor. The Commission shall remand the complaint to the agency so that it may supplement the record with evidence showing whether appellant had actual or constructive notice of the time limit for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Bibeau, EEOC Appeal No. 01966049. The agency has submitted an affidavit, photographs of EEO posters, copies of materials from a training booklet, and copies of EEO posters. The affidavit from Person A dated May 28, 1997 does not claim that the EEO posters were posted more than 45 days before appellant initially contacted an EEO Counselor on May 14, 1996. There is no affidavit in the record stating the EEO posters in the record or other EEO information containing time deadlines were ever posted or distributed to appellant more than 45 days prior to May 14, 1996. Although Person A refers in the affidavit to "stand-up talks," Person A does not state that the talks occurred 45 days prior to May 14, 1996 or that the talks explained the time deadline for contacting an EEO Counselor. Page 21 of the training booklet, the page relied upon by the agency in its decision, does not provide information on the time deadline for contacting an EEO Counselor. The Commission finds that the agency has failed to show that appellant had actual or constructive notice of the time limits for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Thus, we can not find that appellant failed to timely contact an EEO Counselor. The agency has had two opportunities to submit a record to the Commission showing that appellant had actual or constructive notice of the time deadline for contacting an EEO Counselor more than 45 days before he contacted an EEO Counselor. Because the agency has failed to make such a showing, we shall reverse the agency's decision and order the agency to resume processing the complaint. The agency's decision dismissing the complaint is REVERSED and we REMAND the complaint to the agency for further processing in accordance with this decision and applicable regulations. ORDER (E1092) The agency is ORDERED to process the remanded allegations in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations 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© (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: October 7, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations	[ "Bibeau v. United States Postal Serv., EEOC Appeal No. 01966049 (Apr. 23, 1997)", "Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "Pride v. United States Postal Serv., EEOC Request No. 05930134 (Aug. 19, 1993)", "861 F.2d 746" ]	[ -0.0656839981675148, 0.08751123398542404, 0.07241680473089218, -0.028203202411532402, 0.025568747892975807, -0.045937299728393555, 0.04259837418794632, 0.038808535784482956, -0.021311456337571144, 0.013914316892623901, 0.04167196899652481, -0.010869122110307217, -0.051119495183229446, 0.00...
63	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093645.txt	0120093645.txt	TXT	text/plain	8,787	Daniel Z. Oquendo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency.	July 20, 2009	Appeal Number: 0120093645 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.). We have consistently held that a complainant who is a previous participant in the EEO process is cognizant of the time limitations for making counselor contact. See Wilburn v. United States Postal Service, EEOC Appeal No. 0120064537 (February 23, 2007), which relies on Coffey v. Department of the Navy, EEOC Request No. 05901006 (November 16, 1990). We find that complainant was notified of the time limit to contact an EEO counselor and how to do so, or was otherwise aware of this. In making this finding, we rely on affidavit by the Supervisor, Transportation Operations together with complainant's prior participation in EEO activity. As complainant failed to timely initiate EEO counseling, we affirm the agency's final decision. The agency's final decision dismissing complainant's complaint is affirmed.	Daniel Z. Oquendo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency. Appeal No. 0120093645 Agency No. 66000001709 DECISION Complainant filed a timely appeal with this Commission from the agency's decision dated July 20, 2009, 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. In his complaint, complainant alleged that he was subjected to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when in June 2008 the agency denied his request to work in a light duty position on the nighttime tour (tour 1). Complainant is a postal police officer with the San Francisco Processing and Distribution Center (P&DC). In May 2008, he injured his shoulder, and was scheduled for surgery in June 2008. Around that time complainant was offered light duty on tour 2 (day shift). Complainant avers that he responded that he could not work tour 2 because he was caring for his terminally ill brother and elderly mother, but could work on tour 1 (night shift) in the position of post 1, which he characterizes as light duty. Complainant avers that the agency refused with the explanation that this position was not offered anymore. Complainant's surgery was delayed, and occurred in August 2008. He returned to work in December 2008, with a letter from his surgeon that he was fit for full duty. In an affidavit dated December 12, 2008, the Supervisor, Transportation Operations at the San Francisco P&DC writes that an EEO poster dated December 2005 has been displayed on the bulletin board and in the swing room since it was received after being published, and is currently on display. The Supervisor writes that the poster advises employees of the time requirements for filing an EEO counseling request and the telephone number to contact an EEO counselor. The agency dismissed the complaint on the grounds that complainant failed to timely initiate contact with an EEO counselor. It found that complainant did not contact an EEO counselor until March 12, 2009, beyond the 45 calendar day time limit to do so. On appeal, complainant writes that while there is a bulletin board in their office, it has nothing posted about how to file an EEO and has no EEO contact number. The record reflects that complainant has previous EEO activity. The appeal file in Oquendo v. United States Postal Service, EEOC Appeal No. 0120071496 (July 16, 2007) reflects that he filed a prior EEO complaint in March 2002 which was accepted for investigation and investigated. He also worked at the San Francisco P&DC then. 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. 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.). We have consistently held that a complainant who is a previous participant in the EEO process is cognizant of the time limitations for making counselor contact. See Wilburn v. United States Postal Service, EEOC Appeal No. 0120064537 (February 23, 2007), which relies on Coffey v. Department of the Navy, EEOC Request No. 05901006 (November 16, 1990). We find that complainant was notified of the time limit to contact an EEO counselor and how to do so, or was otherwise aware of this. In making this finding, we rely on affidavit by the Supervisor, Transportation Operations together with complainant's prior participation in EEO activity. As complainant failed to timely initiate EEO counseling, we affirm the agency's final decision. The agency's final decision dismissing complainant's complaint is affirmed. 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 February 17, 2010 __________________ Date	[ "Oquendo v. United States Postal Service, EEOC Appeal No. 0120071496 (July 16, 2007)", "Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)", "Wilburn v. United States Postal Service, EEOC Appeal No. 0120064537 (February 23, 2007)", "Coffey v. Department of the Navy, EEOC Request No...	[ -0.04817687347531319, 0.09855496883392334, 0.04051557555794716, 0.026479866355657578, -0.015285508707165718, -0.033293526619672775, 0.07110507786273956, -0.01853870041668415, -0.03486310690641403, -0.04185906797647476, 0.04125676304101944, 0.00007648752944078296, 0.004890006501227617, 0.00...
64	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a45667.txt	01a45667.txt	TXT	text/plain	10,320	Maria T. Cox v. United States Postal Service 01A45667 September 8, 2005 . Maria T. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.	September 8, 2005	Appeal Number: 01A45667 Background: The complainant filed an EEO complaint claiming that she was discriminated against based on her race/color (white), national origin (Hispanic/Argentina),<1> disability (unidentified), and reprisal for prior EEO activity when: (1) after asking in March 2003 for a resumption of her medical accommodation by being assigned to the manual mail unit, the Manager of Distribution Operations (MDO 1) told her she does not have any room for people who can't work and if you have so much stress, you should go home; she was then shuttled back and forth between the manual mail and the optical character reading (OCR) units for a couple weeks until being given ongoing accommodation in the manual mail unit by MDO 2, (2) on August 26, 2003, she was informed that her request for leave without pay (LWOP) for August 28 and 29, 2003 was denied, and (3) her May 2003 complaint which was allegedly filed was never processed, and (4) her October 10, 2003 request for mediation in the instant EEO case was ignored by the agency and the agency delayed processing this case. The complainant returned to work in March 2003 following a three month absence. She requested resumed accommodation by being placed in the manual mail unit. The FAD characterized claim 1 as only concerning the comments by the MDO 1, and left out the remaining portion which was written in the EEO complaint. The FAD characterized claim 2 as the complainant learning on August 27, 2003 of the denial of her LWOP request, but she stated she learned of the denial the day before. The FAD characterized claim 4 as concerning the complainant's request for mediation being ignored, but the complainant also contended the processing of this case was delayed. Legal Analysis: the Commission finds that the relief requested by the complainant is irrelevant as to whether her complaint states a processable claim. Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994). We now turn to claims 3 and 4. Under 29 C.F.R. § 1614.107(a)(8), an agency shall dismiss claims that allege dissatisfaction with the processing of a previously filed complaint. In the present case, the Commission finds that, in her formal complaint, complainant clearly raises claims pertaining to the processing of her prior EEO matters. Therefore, under the Commission's regulations, the agency properly dismissed claims 3 and 4, which are claims of improper processing.	Maria T. Cox v. United States Postal Service 01A45667 September 8, 2005 . Maria T. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A45667 Agency No. 1K-221-0005-04 DECISION The complainant filed a timely appeal with this Commission from a final agency decision (FAD) dated August 4, 2004 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. ISSUES PRESENTED Whether (1) the FAD properly defined the claims in the complainant's complaint, and (2) whether it properly dismissed the complaint for failure to timely seek EEO counseling, failure to state a claim, and for alleging dissatisfaction with the processing of a previously filed complaint. BACKGROUND The complainant filed an EEO complaint claiming that she was discriminated against based on her race/color (white), national origin (Hispanic/Argentina),<1> disability (unidentified), and reprisal for prior EEO activity when: (1) after asking in March 2003 for a resumption of her medical accommodation by being assigned to the manual mail unit, the Manager of Distribution Operations (MDO 1) told her she does not have any room for people who can't work and if you have so much stress, you should go home; she was then shuttled back and forth between the manual mail and the optical character reading (OCR) units for a couple weeks until being given ongoing accommodation in the manual mail unit by MDO 2, (2) on August 26, 2003, she was informed that her request for leave without pay (LWOP) for August 28 and 29, 2003 was denied, and (3) her May 2003 complaint which was allegedly filed was never processed, and (4) her October 10, 2003 request for mediation in the instant EEO case was ignored by the agency and the agency delayed processing this case. The complainant returned to work in March 2003 following a three month absence. She requested resumed accommodation by being placed in the manual mail unit. The FAD characterized claim 1 as only concerning the comments by the MDO 1, and left out the remaining portion which was written in the EEO complaint. The FAD characterized claim 2 as the complainant learning on August 27, 2003 of the denial of her LWOP request, but she stated she learned of the denial the day before. The FAD characterized claim 4 as concerning the complainant's request for mediation being ignored, but the complainant also contended the processing of this case was delayed. ANALYSIS AND FINDINGS For the reasons set forth above, we find that claims 1, 2 and 4 should be defined as set forth in the numbered portion of this decision above. The FAD dismissed claim 1, in part, for failure to timely initiate contact with an EEO counselor. The alleged discriminatory events began in March 2003, and ended about two weeks later. The complainant initiated contact with an EEO counselor regarding the instant complaint on October 7, 2003. The complainant wrote the EEO counselor in October 2003 that she filed an EEO complaint in May 2003, which she later clarified regarded being shuttled back and forth for a couple weeks between the manual mail and OCR units. She contended she was not informed of any action on the complaint. In reply to this contention, the EEO counselor, also known as a dispute resolution specialist, wrote the complainant in July 2004 that a review of EEO records showed that the complainant requested EEO pre-complaint forms on April 21, 2003, they were sent to her, and there was no record of them being returned by the complainant. The complainant has not replied to this statement by the EEO counselor. She is familiar with the EEO process, as evidenced by her filing a number of prior EEO complaints. We find that the agency properly dismissed claim 1 for untimely EEO counseling. The complainant makes no specified argument nor submits documentation disputing the EEO counselor's representation that while the complainant asked for pre-complaint forms in April 2003, she never sent them in. Given this circumstance, we construe the initial EEO contact regarding claim 1 to have occurred when she first contacted an EEO counselor for the instant complaint on October 7, 2003, long beyond the 45 day time limit to do so.<2> 29 C.F.R. § 1614.107(a)(2) and .105(a)(1). Regarding claim 2, the complainant contends that her leave request, which she made on August 25, 2003, was initially denied by MDO 1, and she learned this on August 26, 2003. She contended that MDO 2 then approved her leave request the next day. The complainant's leave request form is signed as being approved by MDO 2 on August 26, 2003. The agency dismissed claim 2 for mootness. We find, however, that claim 2 fails to state a claim. Regulation 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. While the leave was initially denied, it was very soon thereafter approved. The complainant has failed to show an injury to a term, condition or privilege of employment for which there is a remedy. The complainant requested compensatory damages in her complaint. When, as in the instant case, an allegation fails to render a complainant aggrieved, it will not be converted into a processable claim merely because the complainant has requested compensatory damages. Therefore, the Commission finds that the relief requested by the complainant is irrelevant as to whether her complaint states a processable claim. Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994). We now turn to claims 3 and 4. Under 29 C.F.R. § 1614.107(a)(8), an agency shall dismiss claims that allege dissatisfaction with the processing of a previously filed complaint. In the present case, the Commission finds that, in her formal complaint, complainant clearly raises claims pertaining to the processing of her prior EEO matters. Therefore, under the Commission's regulations, the agency properly dismissed claims 3 and 4, which are claims of improper processing. CONCLUSION The proper definition of the complainant's complaint is set forth in this decision. The agency's dismissal of the complainant's complaint, for the reasons stated in this 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 September 8, 2005 __________________ Date 1The complainant stated that her race was Hispanic. The Commission views Hispanic as a reference to national origin. 2The FAD also dismissed claim 1, as defined therein, for failure to state a claim. As we are affirming the dismissal for failure to timely seek EEO counseling, we need not address the other basis of dismissal.	[ "Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 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", "29 U.S.C. §§ 791" ]	[ -0.034106187522411346, 0.06416696310043335, 0.014431756921112537, 0.027113735675811768, 0.00031369325006380677, 0.07715268433094025, 0.02680155076086521, 0.009966452606022358, -0.012179401703178883, -0.017199106514453888, 0.008909827098250389, 0.02180279605090618, -0.03137663006782532, -0....
65	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520112718.txt	0520112718.txt	TXT	text/plain	9,346	Toney M. Lisbon, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.	October 13, 2011	Appeal Number: 0120112718	Toney M. Lisbon, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Request No. 0520120127 Appeal No. 0120112718 Agency No. DFAS-00035-2011 DENIAL The Agency timely requested reconsideration of the decision in Toney M. Lisbon v. Department of Defense, EEOC Appeal No. 0120112718 (October 13, 2011). 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). In our previous decision, we reversed the Agency's final decision dismissing Complainant's complaint. In particular, we found that the Agency improperly dismissed claims 1 - 4 for untimely EEO Counselor contact. We also found that the Agency improperly dismissed claim 5 for failure to state a claim. Specifically, we noted that a fair reading of Complainant's complaint reflected that Complainant was subjected to a series of related harassment incidents from March through December 2010. We noted that at least one claim of harassment occurred within the 45-day time period preceding Complainant's January 11, 2011, EEO Counselor contact. We therefore found that Complainant's claims, taken together, stated an actionable claim of a pattern of harassment.1 In its request to reconsider our previous decision, the Agency asserts that our previous decision involved a clearly erroneous interpretation of law and material fact. The Agency asserts that Complainant's January 11, 2011, EEO Counselor contact occurred over eight months after he resigned from his position, and therefore Complainant failed to contact an EEO Counselor when he reasonably suspected discrimination with respect to claim 4. The Agency further asserts that Complainant's June 17, 2010, contact with the Agency's Fort Riley, Kansas EEO office was not sufficient because he did not have the intent pursue a complaint of discrimination at that time. The Agency also asserts that claim 4, Complainant's resignation, is a "discrete act" that must be dismissed because it occurred more than 45 days before Complainant contacted an EEO Counselor on January 11, 2011. The Agency lastly asserts that our previous decision will have a substantial adverse impact on the policies and practices of its operations. In response, Complainant through his attorney contends that his resignation occurred on May 3, 2010, and he first contacted an EEO Counselor in Fort Riley, Kansas on June 17, 2010, meeting the 45-day limitation period with respect to claim 4. Complainant further contends that he contacted an EEO Counselor a second time on January 11, 2011, in Indianapolis, Indiana. Complainant, with respect to claim 5, contends that the December 13, 2010, e-mail from Agency management made an express reference to his resignation and is part of his overall claim of harassment. Our previous decision found that Complainant alleged a series of separate acts that collectively constitute one unlawful employment practice. Complainant's hostile work environment claim encompassing constructive discharge therefore is timely. We note that Complainant contends that he involuntarily resigned on May 3, 2010, and contacted an EEO Counselor on June 17, 2010, meeting the 45-day limitation period for claim 4. The Agency does not dispute that Complainant contacted the EEO office in Fort Riley, Kansas, but asserts that this contact was not sufficient because he did not intend to pursue a complaint of discrimination at that time. However, the record contains a copy of the June 17, 2010, Information Inquiry Summary signed by a Fort Riley Agency EEO official. Therein the EEO official noted that Complainant contacted the office in person to report that he felt that he was being subject to discrimination by Agency management. The EEO official also noted that Complainant was provided with procedures for the filing of an EEO complaint. In his formal EEO complaint, Complainant noted that he contacted the Fort Riley EEO office to "see about filing an EEO complaint." As such, notwithstanding the Agency's assertion, we find that Complainant contacted the EEO office with the intent pursue the EEO process on June 17, 2010. See Walters v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110980 (May 18, 2011) (finding that complainant's contact with an EEO assistant, who provided information needed to pursue her EEO complaint, satisfied 29 C.F.R. § 1614.105(a)(1)). As such we find that Complainant's June 17, 2010, contact was sufficient. Therefore, we find that although claim 4 was a discrete act, Complainant's June 17, 2010, EEO contact occurred within 45 days of his May 3, 2010, resignation date. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). We note Complainant alleged that the same management official was responsible for claims 1 - 4. As such, our previous decision found that claims 1 - 4 are timely under a continuing violation theory. See id. Complainant alleged that claim 5 is related to claims 1 - 4 as a series of separate acts that collectively constitute one unlawful employment practice. See id . 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112718 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. 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. 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 10, 2012 Date 1 We note that Complainant's work facility was located in Fort Riley, Indiana, rather than Indianapolis, as preiously stated. ------------------------------------------------------------ ------------------------------------------------------------	[ "Toney M. Lisbon v. Department of Defense, EEOC Appeal No. 0120112718 (October 13, 2011)", "Walters v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110980 (May 18, 2011)", "536 U.S. 101", "29 C.F.R. § 1614.405(b)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.108", "42 U.S.C. § 2000e", "29 U.S.C. §§...	[ -0.06150279939174652, 0.07670686393976212, -0.03679325804114342, -0.011699171736836433, 0.010865535587072372, 0.033093638718128204, 0.01412233803421259, 0.038168925791978836, 0.005235418677330017, 0.04575444012880325, 0.07220303267240524, -0.03467020392417908, -0.05405338108539581, -0.0106...
66	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161567.txt	0120161567.txt	TXT	text/plain	9,423	Terrell G.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.	March 22, 2016	Appeal Number: 0120161567 Background: At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant Student Trainee at the Agency's Office of Chief Counsel facility in New York, New York. The EEO counseling report in this matter indicates that Complainant alleged that on October 22, 2014, he reported an incident of sexual harassment by the Office Manager to the Area Manager. On April 6, 2015, Complainant received an email from the Area Manager that his last day of employment as an intern would be May 30, 2015. A few days later, Complainant received official notice of the termination of his student internship, effective May 30, 2015,2 as he was scheduled to graduate at that time. After receiving his termination notice, the EEO counseling report stated that Complainant said that he made it known that he was going to report another incident of sexual harassment that he had witnessed between two coworkers. On December 28, 2015, Complainant initiated contact with an EEO counselor regarding his termination. The EEO counselor asked Complainant why he waited from May 2015 to December 2015 to contact the EEO Office. Complainant informed the EEO counselor that he feared retaliation from management if he filed an EEO complaint. He also stated that he was hoping "to possibly be kept for a permanent position." In response to a question from the EEO counselor, Complainant stated that he had received training on his EEO rights during his employment. On March 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) and reprisal (for providing information regarding sexual harassment) when, effective May 30, 2015, he was terminated. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was terminated from his internship effective May 30, 2015. However, he did not contact an EEO counselor until December 28, 2015, well beyond the 45-day time limit, despite his admitted awareness of the EEO complaint process. The instant appeal from Complainant followed. Legal Analysis: EEOC Regulations 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 45 days of the effective date of the action. See 29 C.F.R. § 1614.107(a)(2). Here, Complainant asked that any delay in seeking EEO counseling be excused because he feared retaliation from the Agency. The Commission has repeatedly held that, in general, fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Parker v. Dep't. of Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995). However, an extension may be justified where Complainant's fear of reprisal is based on "severe intimidation," such as a supervisor's threat to fire an employee if he files a complaint. Duncan v. Dep't. of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998. In the present case, Complainant was no longer working for the Agency as of May 30, 2015, and has not provided any concrete reason for why he waited six months to contact an EEO counselor after he left the Agency's employment. Based on our review, we find that Complainant has not established that the time period should be tolled due to fear of retaliation. Complainant also argued that he made the EEO office aware of alleged harassment when he was contacted by the EEO office in April 2015 as a potential witness in another employee's complaint. However, while Complainant may have spoken with the EEO office as a potential witness for another employee, he has not established that, at that time, he communicated an intent to begin the EEO process in his own matter. See Cox v. Dep't. of Housing and Urban Develop., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996). Therefore, we find that Complainant has not shown that he made contact with an EEO counselor at an earlier date than December 2015, regarding the Agency's termination action. 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 contact. Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.	Terrell G.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency. Appeal No. 0120161567 Agency No. IRSCC-16-0167-F DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated March 22, 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 as a Legal Assistant Student Trainee at the Agency's Office of Chief Counsel facility in New York, New York. The EEO counseling report in this matter indicates that Complainant alleged that on October 22, 2014, he reported an incident of sexual harassment by the Office Manager to the Area Manager. On April 6, 2015, Complainant received an email from the Area Manager that his last day of employment as an intern would be May 30, 2015. A few days later, Complainant received official notice of the termination of his student internship, effective May 30, 2015,2 as he was scheduled to graduate at that time. After receiving his termination notice, the EEO counseling report stated that Complainant said that he made it known that he was going to report another incident of sexual harassment that he had witnessed between two coworkers. On December 28, 2015, Complainant initiated contact with an EEO counselor regarding his termination. The EEO counselor asked Complainant why he waited from May 2015 to December 2015 to contact the EEO Office. Complainant informed the EEO counselor that he feared retaliation from management if he filed an EEO complaint. He also stated that he was hoping "to possibly be kept for a permanent position." In response to a question from the EEO counselor, Complainant stated that he had received training on his EEO rights during his employment. On March 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) and reprisal (for providing information regarding sexual harassment) when, effective May 30, 2015, he was terminated. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was terminated from his internship effective May 30, 2015. However, he did not contact an EEO counselor until December 28, 2015, well beyond the 45-day time limit, despite his admitted awareness of the EEO complaint process. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS EEOC Regulations 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 45 days of the effective date of the action. See 29 C.F.R. § 1614.107(a)(2). Here, Complainant asked that any delay in seeking EEO counseling be excused because he feared retaliation from the Agency. The Commission has repeatedly held that, in general, fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Parker v. Dep't. of Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995). However, an extension may be justified where Complainant's fear of reprisal is based on "severe intimidation," such as a supervisor's threat to fire an employee if he files a complaint. Duncan v. Dep't. of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998. In the present case, Complainant was no longer working for the Agency as of May 30, 2015, and has not provided any concrete reason for why he waited six months to contact an EEO counselor after he left the Agency's employment. Based on our review, we find that Complainant has not established that the time period should be tolled due to fear of retaliation. Complainant also argued that he made the EEO office aware of alleged harassment when he was contacted by the EEO office in April 2015 as a potential witness in another employee's complaint. However, while Complainant may have spoken with the EEO office as a potential witness for another employee, he has not established that, at that time, he communicated an intent to begin the EEO process in his own matter. See Cox v. Dep't. of Housing and Urban Develop., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996). Therefore, we find that Complainant has not shown that he made contact with an EEO counselor at an earlier date than December 2015, regarding the Agency's termination action. 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 contact. Accordingly, the agency's final decision dismissing complainant's complaint 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 June 21, 2016 __________________ Date 2 There is some confusion in the record about whether or not the notice was rescinded at some point. Nevertheless, Complainant's employment ended on May 30, 2015. ------------------------------------------------------------ ------------------------------------------------------------	[ "EEO Counselor. See Parker v. Dep't. of Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995)", "Duncan v. Dep't. of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998. In the present case, Complainant was no longer working for the Agency as of May 30, 2015, and has not provided any concrete reason f...	[ -0.06933516263961792, 0.0879211276769638, 0.01954786852002144, -0.00518447533249855, 0.012372252531349659, 0.0036002760753035545, 0.01442432589828968, -0.03819357603788376, 0.003281285287812352, 0.045452382415533066, 0.035005610436201096, 0.014896954409778118, -0.032306842505931854, 0.0275...
67	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161095.r.txt	0120161095.r.txt	TXT	text/plain	9,005	Kazuko M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.	January 6, 2016	Appeal Number: 0120161095 Background: During the period at issue, Complainant worked as a Pharmacy Technician at the Agency's Veterans Affairs Medical Center in Loma Linda, California. On August 18, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On November 2, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of race and age when: on May 19, 2015, she was not selected for the Narcotics Technician, GS-7 position, advertised under Announcement No. LL-15-TRL-T3BH-1346461-BU. In its January 6, 2016 final decision, the Agency dismissed 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's initial EEO Counselor contact was on August 18, 2015, which it found to be beyond the 45-day limitation period. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told her that her EEO contact was untimely because when she inquired about her non-selection, an unidentified individual suggested her to submit an inquiry under the Freedom of Information Act (FOIA). The record contains a copy of the EEO Manager's declaration dated December 9, 2015. Therein, the EEO Manager stated that Complainant attended the Prevention of Workplace/Sexual Harassment/No Fear training in December 2008, April 2010, January 2011, April 2011, February 2012, March 2013, and February 2015, wherein employees were informed of the EEO process, including the 45-day limitation timeframe for contacting an EEO Counselor. The EEO Manager also stated that the EEO Posters outlining the 45-day time limit for contacting EEO Counselor were posted in five locations in Complainant's workplace. Complainant, on appeal, argues that her August 18, 2015 EEO contact was timely. Complainant acknowledges she was notified of her non-selection on May 19, 2015 "but had no reason at that time to believe or be aware that she had been discriminated against. On June 4, 2015, Complainant was advised by [EEO Assistant], she could contact the Freedom of Information Act Office to get a copy of the panel questions and responses. After several attempts to obtain this information and the Agency's deliberate delay, she received a response from FOIA on June 16, 2015...once Complainant reviewed the responses, she met with [EEO Assistant] on August 5, 2015 and then became aware that she had been discriminated against by not getting selected for the position [emphasis in its original]." 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 alleged discriminatory event occurred on May 19, 2015. However, Complainant did not initiate contact with an EEO Counselor until August 18, 2015, well beyond the 45-day limitation period. 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. In summary, we determine that, 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). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000). The Agency's final decision dismissing the formal complaint for the reason stated herein is AFFIRMED.	Kazuko M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161095 Agency No. 200P-0605-2015104942 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 6, 2016, 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 a Pharmacy Technician at the Agency's Veterans Affairs Medical Center in Loma Linda, California. On August 18, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On November 2, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of race and age when: on May 19, 2015, she was not selected for the Narcotics Technician, GS-7 position, advertised under Announcement No. LL-15-TRL-T3BH-1346461-BU. In its January 6, 2016 final decision, the Agency dismissed 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's initial EEO Counselor contact was on August 18, 2015, which it found to be beyond the 45-day limitation period. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told her that her EEO contact was untimely because when she inquired about her non-selection, an unidentified individual suggested her to submit an inquiry under the Freedom of Information Act (FOIA). The record contains a copy of the EEO Manager's declaration dated December 9, 2015. Therein, the EEO Manager stated that Complainant attended the Prevention of Workplace/Sexual Harassment/No Fear training in December 2008, April 2010, January 2011, April 2011, February 2012, March 2013, and February 2015, wherein employees were informed of the EEO process, including the 45-day limitation timeframe for contacting an EEO Counselor. The EEO Manager also stated that the EEO Posters outlining the 45-day time limit for contacting EEO Counselor were posted in five locations in Complainant's workplace. Complainant, on appeal, argues that her August 18, 2015 EEO contact was timely. Complainant acknowledges she was notified of her non-selection on May 19, 2015 "but had no reason at that time to believe or be aware that she had been discriminated against. On June 4, 2015, Complainant was advised by [EEO Assistant], she could contact the Freedom of Information Act Office to get a copy of the panel questions and responses. After several attempts to obtain this information and the Agency's deliberate delay, she received a response from FOIA on June 16, 2015...once Complainant reviewed the responses, she met with [EEO Assistant] on August 5, 2015 and then became aware that she had been discriminated against by not getting selected for the position [emphasis in its original]." 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 alleged discriminatory event occurred on May 19, 2015. However, Complainant did not initiate contact with an EEO Counselor until August 18, 2015, well beyond the 45-day limitation period. 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. In summary, we determine that, 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). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000). The Agency's final decision dismissing the formal complaint for the reason stated herein is AFFIRMED. 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 April 22, 2016 __________________ Date ------------------------------------------------------------ ------------------------------------------------------------	[ "EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995)", "Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991)", "Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000)", "29 C.F.R. § 1614.107(a)", ...	[ -0.10192088037729263, 0.11222629994153976, -0.023445114493370056, 0.02053080126643181, 0.0015551582910120487, 0.06780077517032623, 0.021430447697639465, -0.0073271761648356915, -0.04077170044183731, 0.027942894026637077, 0.048362597823143005, -0.04057842865586281, -0.01487311627715826, -0....
68	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a40571.txt	01a40571.txt	TXT	text/plain	35,833	Georgiana M. Winters v. Department of Agriculture 01A40571 May 16, 2006 . Georgiana M. Winters, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.	May 16, 2006	Appeal Number: 01A40571 Background: The complainant was employed as a Equal Opportunity Assistant (OA), GS-7 at the agency's Office of the Chief Financial Officer (OCFO), Office of the Director, Equal Employment Opportunity Staff, National Finance Center (NFC) in New Orleans, LA until being detailed on or about July 25, 2001 and then reassigned to the position of secretary. Following a consolidated investigation of her EEO claims, the complainant requested that the agency issue a FAD. The FAD found no discrimination, and the complainant appealed. On appeal, the complainant indicates that an examination of the evidence establishes that she was subject to discrimination and reprisal when she was harassed, was not promoted, and was reassigned. The agency generally argues that the record supports the FAD. Legal Analysis: the Commission examines factors such as the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating and if it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S 17, 23 (1993). Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Part of the complainant's harassment claim regarded her supervisor's lack of direct communication with her. He explained that he was busy and as circumstances warranted he communicated through others, and he did this with other employees. The acting EEO manager, according to his supervisor, delayed responding to one of the complainant's e-mails because he was out of the office, and said to him that the complainant should have understood her assignments. The complainant also contended that much of her work was reassigned to Co-workers 1 and 2. Co-worker 1 (white female, born around 1956) was an American Sign Language Interpreter, GS-7 and Co-worker 2 (white female, born around 1970) was an Employee Relations Specialist, GS-12. The complainant described her job duties at the time as consisting of 80% clerical work providing support for the EEO staff in all areas, and 20% administrative work doing things like time and attendance, telephone coverage, making travel arrangements, and ordering supplies. However, she also wrote that she gave guidance on the EEO and special recruitment programs, gathered, computed and summarized information used in preparing affirmative employment plans and reports, and did analysis for various reports. Regarding the loss of duties, the complainant contended, for example, that certain correspondence stopped being routed through her to check, and started being routed through Co-worker 1. The complainant's supervisor denied that the complainant's clerical duties had been reassigned to Co-worker 1, and stated the correspondence in question comes through the EEO office, that the complainant saw it before him, and she could check it. The complainant contended that she had been doing the EEO meeting agendas for many years, and the one day she was out Co-worker 1 was given this assignment. The supervisor explained that this was a routine, elementary task which the complainant continued to do, but if the complainant was out Co-worker 1 would do it. The complainant also contended that her task of notifying responding officials of EEO investigations was assumed by Co-worker 2, as well as the responsibility for ensuring that investigative document request list responses were complete. While denying that the complainant's duties were changed, the acting EEO manager stated that starting in April 2001 he assigned Co-worker 2 the task of ensuring that reports of investigation were of quality and complete, noting that she had a law degree. While the complainant stated that many of her tasks were assigned to others, at other times she indicated that she had much work to do. For example, in complaining about being asked to cover the secretarial function in another office for a brief period, the complainant complained that she had other work. The complainant's supervisor was not involved in this matter. A rumor was circulating that an employee was resigning from his EEO subcommittee member post. When asked about this by a co-worker, the EEO subcommittee member strongly responded by e-mail that this was not true, indicating that he only told the complainant that if his new job was too much work, he might consider resigning from his subcommittee post. Thereafter, the complainant sent an e-mail to the subcommittee member, with a copy to his co-worker and the acting EEO manager, denying that she told anyone he was resigning, and she did not know who made a certificate for him. She wrote that she told the acting EEO manager that the subcommittee member may resign. Before the above exchanges, the complainant sent an e-mail to the acting EEO manager which appeared to state that the subcommittee member was resigning his post. Hence, while the acting EEO manager might have spread the word, this more likely than not would have resulted from a mis-communication, not animus. In April 2001 the supervisor wrote the complainant that documents received in one case did not match documents requested, and she should check documents before concluding that they were all there. The complainant countered that she did not do so because Co-worker 2 had the package and delivered it to the supervisor before the complainant had an opportunity to check. The evidence tends to show that the supervisor's belief, even if wrong, was based on the information he had at the time, not animus. The complainant failed to show that she was subject to race, sex and/or age based harassment. The acting EEO manager apparently had a different management style from his predecessor, and the complainant failed to show, by a preponderance of the evidence, that the supervisor's actions were because of her race, sex, age and/or reprisal rather than, as indicated by the record, for the legitimate nondiscriminatory reason of running the office in what the acting EEO manager believed was an efficient matter. Moreover, the actions to which the complainant was subjected were not sufficiently severe to rise to the level of harassment. Final Decision: Accordingly, the complainant failed to prove she was harassed in violation of Title VII or the ADEA. Promotion To prevail in a disparate treatment claim, the complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially establish a prima facie case by demonstrating that 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. 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, the 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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). In applying the disparate treatment analysis of McDonnell Douglas Corp., the prima facie inquiry may be dispensed where the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, the complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The NFC advertised the position of Equal Opportunity Specialist, GS-7 (with a promotion potential to GS-12) under vacancy announcement NFC-01-018. The duties of the position involved working with higher graded EEO Specialists in monitoring NFC's progress and accomplishments of goals and objectives, analyzing statistics on minority representation, and serving as an editor to the EEO Advisor newsletter. The complainant applied for the position, was qualified, and was interviewed, as were other candidates. The selecting official was the complainant's supervisor, and in May 2001 he chose Co-worker 1. He explained that the selectee had excellent communication skills, as demonstrated in her preparation of a variety of comprehensive reports related to substantive EEO programs, providing advice and guidance to managers, supervisors, and employees on EEO matters, developing and conducting informal and sensitivity training to managers and employees on various EEO topics, and serving as an interpreter. He added that the selectee identified barriers to equal employment, and assisted in the correction of such barriers, and suggested her performance was good. The selectee's application indicated that she was performing complex substantive EEO duties. The selecting official was not aware of the complainant's EEO activity when he made his selection decision on May 22, 2001. The reviewing official was aware, but could not recall its details. The agency explained that it chose the selectee based on her qualifications. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). The complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of a selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Both the complainant and the selectee had substantial experience relevant to the job, and the complainant did not show her qualifications were plainly superior to those of the selectee. The complainant failed to prove discrimination regarding not being selected for promotion. Reassignment On July 23, 2001, an EEO counselor contacted the acting EEO manager about the complainant's race, sex, age and reprisal based harassment claim. The complainant was represented by an attorney on this claim. On July 25, 2001, the complainant, at the behest of the acting EEO manager, was reassigned to the position of Secretary, GS-7, in the OCFO, Financial Services Division of the NFC. The reassignment letter by the acting EEO manager stated this was done because of a conflict of interest. The letter stated that of 73 EEO cases being handled at the NFC (EEO office), the complainant's attorney was the representative on 62, and reasoned that the complainant's job required her to interact with representatives of complainants, which in most cases was the attorney on her case. It also reasoned that the complainant's job required her to continuously handle sensitive information in EEO cases filed against the agency, and this constituted a conflict of interest because she served as a representative of the agency. In explaining the reason for the reassignment, the acting EEO manager reiterated what was stated in the reassignment letter. The acting EEO manager's supervisor stated that in discussing the matter with him, the former told him that the complainant had filed an EEO complaint, and identified the risk to the program associated with her complaint and her access to other complaint information. The FAD found that the complainant was not subject to an adverse action because she was reassigned with no loss in grade or pay. It acknowledged that the complainant was reassigned because of her EEO activity, but found this was nondiscriminatory because in the exercise of reasonable management judgment this was done due to a conflict of interest posed by her exposure to sensitive EEO information. The complainant established a prima facie case of reprisal discrimination. She was admittedly reassigned because of her EEO activity. This action was adverse. She did not seek to be reassigned. On appeal, the complainant complains that she had been a Equal Opportunity Assistant for 18½ years and her career and series were involuntarily changed. The agency explained that it reassigned the complainant because she filed an EEO complaint, creating a conflict of interest, and noted her attorney was the representative on most of the EEO cases in the EEO office. In Monroig v. U.S. Commission on Civil Rights, EEOC Appeal No. 07A10012 (April 25, 2002), the employee was a Solicitor, who among other things, served as in-house counsel and represented her employer in matters before the EEOC and the Merit Systems Protection Board. The employee's EEO responsibilities were removed because she filed an informal EEO complaint. Some months later, because of this EEO activity and a memo she wrote concerning the organizational structure of the EEO program which was opposition EEO activity, the employee was reassigned out of her position and into another unit. An EEOC Administrative Judge found reprisal discrimination regarding these employer actions. In Monroig, the employer argued that the filing of the EEO complaint created a conflict of interest and rendered the employee ineffective in her job. The Commission disagreed. It ruled that anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process, and that the act of filing a complaint without more does not so interfere with the employee's performance of her job that it renders her ineffective in her position. It distinguished federal case law where confidential client confidences were disclosed. The Commission disagreed with the employer's suggestion that the act of filing a complaint by in-house counsel is not protected activity, noting this would remove in-house counsel from Title VII protection. The agency's reason for reassigning the complainant does not constitute a legitimate, nondiscriminatory reason. Like in Monroig, the complainant simply brought an EEO claim. This, by itself, does not create a conflict of interest making the complainant ineffective in her job. While there would be a conflict of interest if the complainant handled her own case for the agency's EEO office, there is none, as in Monroig, in handling the EEO cases of others. Also, while the complainant's attorney was the representative for complainants in most of the cases handled by the EEO office in the NFC, this would not prevent the complainant from maintaining a professional relationship in those cases. The employee in Monroig could professionally represent her employer as a defendant in EEO cases even though she had an EEO case against her employer. Like in Monroig, where the employee did not disclose confidential information, there is no evidence in the record suggesting that the complainant gave her attorney inappropriate information about cases in the EEO office. As in Monroig, the agency's reasoning about a conflict of interest would unfairly remove a category of employees from the protection of anti-discrimination statutes. The agency discriminated against the complainant based on her prior EEO activity when it reassigned her. She failed to prove discrimination based on her race, sex or age. The complainant requested compensatory damages. The record contains insufficient information to make a ruling on compensatory damages. This is addressed in the order below. Appraisal The complainant was rated by her new supervisor (white female, born around 1942) in her secretarial position as fully successful. The supervisor explained that given the short time the complainant worked for her, this was the best rating she could give. Also, she considered the input of the acting EEO manager and his predecessor, who provided summary ratings for the periods they supervised the complainant, most of which were covered by the appraisal period. They each rated the complainant fully successful. Given that all three supervisors separately found that the complainant's performance was fully successful during the rating period, and the record does not demonstrate otherwise, the complainant failed to prove reprisal, race, sex or age discrimination regarding this matter. CONCLUSION The FAD finding of no reprisal or discrimination regarding issues 1, 2 and 4, as numbered herein, is affirmed.	Georgiana M. Winters v. Department of Agriculture 01A40571 May 16, 2006 . Georgiana M. Winters, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency. Appeal No. 01A40571 Agency Nos. 010756 & 020377 DECISION The complainant timely initiated an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final agency decision (FAD) concerning her claim 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. ISSUES PRESENTED Whether (1) the complainant was subjected to a continuous pattern of harassment based on her race (Caucasian), sex (female), age (born in 1947) and reprisal for equal employment opportunity (EEO) activity when, for example, her supervisor did not have a one-on-one meeting with her and failed to timely respond to her e-mail regarding work assignments, some of her responsibilities were reassigned to others, she was accused of not properly performing her duties, and she was questioned about an employee resigning from a committee and a certificate of appreciation being prepared for him; and whether the complainant was discriminated against on the above bases when (2) she was not selected for promotion to the position of Equal Opportunity Specialist, GS-7 (with a career ladder promotion potential to GS-12); (3) she was detailed and subsequently reassigned to the position of Secretary, GS-7,<1> and (4) she received a Fully Successful appraisal performance rating for the period of October 31, 2000 to January 31, 2002. BACKGROUND The complainant was employed as a Equal Opportunity Assistant (OA), GS-7 at the agency's Office of the Chief Financial Officer (OCFO), Office of the Director, Equal Employment Opportunity Staff, National Finance Center (NFC) in New Orleans, LA until being detailed on or about July 25, 2001 and then reassigned to the position of secretary. Following a consolidated investigation of her EEO claims, the complainant requested that the agency issue a FAD. The FAD found no discrimination, and the complainant appealed. On appeal, the complainant indicates that an examination of the evidence establishes that she was subject to discrimination and reprisal when she was harassed, was not promoted, and was reassigned. The agency generally argues that the record supports the FAD. ANALYSIS AND FINDINGS Harassment The 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, a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, 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 complainant's supervisor at the time, the acting EEO manager (black male over age 50), was allegedly responsible for the harassment. He assumed his role in January 2001. Because he did not learn about the complainant's EEO activity until July 23, 2001, after all the alleged incidents of harassment occurred, the complainant failed to prove a prima facie case of reprisal harassment discrimination, and hence her reprisal claim fails. It is well-settled that harassment based on an individual's race, sex and age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 66 (1986). In order to establish a claim of such harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of the statutorily protected classes; (2) that she was subjected to unwelcome conduct related to her membership in those classes; (3) that the harassment complained of was based on her race, sex and/or age; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. In assessing allegations of harassment, the Commission examines factors such as the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating and if it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S 17, 23 (1993). Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Part of the complainant's harassment claim regarded her supervisor's lack of direct communication with her. He explained that he was busy and as circumstances warranted he communicated through others, and he did this with other employees. The acting EEO manager, according to his supervisor, delayed responding to one of the complainant's e-mails because he was out of the office, and said to him that the complainant should have understood her assignments. The complainant also contended that much of her work was reassigned to Co-workers 1 and 2. Co-worker 1 (white female, born around 1956) was an American Sign Language Interpreter, GS-7 and Co-worker 2 (white female, born around 1970) was an Employee Relations Specialist, GS-12. The complainant described her job duties at the time as consisting of 80% clerical work providing support for the EEO staff in all areas, and 20% administrative work doing things like time and attendance, telephone coverage, making travel arrangements, and ordering supplies. However, she also wrote that she gave guidance on the EEO and special recruitment programs, gathered, computed and summarized information used in preparing affirmative employment plans and reports, and did analysis for various reports. Regarding the loss of duties, the complainant contended, for example, that certain correspondence stopped being routed through her to check, and started being routed through Co-worker 1. The complainant's supervisor denied that the complainant's clerical duties had been reassigned to Co-worker 1, and stated the correspondence in question comes through the EEO office, that the complainant saw it before him, and she could check it. The complainant contended that she had been doing the EEO meeting agendas for many years, and the one day she was out Co-worker 1 was given this assignment. The supervisor explained that this was a routine, elementary task which the complainant continued to do, but if the complainant was out Co-worker 1 would do it. The complainant also contended that her task of notifying responding officials of EEO investigations was assumed by Co-worker 2, as well as the responsibility for ensuring that investigative document request list responses were complete. While denying that the complainant's duties were changed, the acting EEO manager stated that starting in April 2001 he assigned Co-worker 2 the task of ensuring that reports of investigation were of quality and complete, noting that she had a law degree. While the complainant stated that many of her tasks were assigned to others, at other times she indicated that she had much work to do. For example, in complaining about being asked to cover the secretarial function in another office for a brief period, the complainant complained that she had other work. The complainant's supervisor was not involved in this matter. A rumor was circulating that an employee was resigning from his EEO subcommittee member post. When asked about this by a co-worker, the EEO subcommittee member strongly responded by e-mail that this was not true, indicating that he only told the complainant that if his new job was too much work, he might consider resigning from his subcommittee post. Thereafter, the complainant sent an e-mail to the subcommittee member, with a copy to his co-worker and the acting EEO manager, denying that she told anyone he was resigning, and she did not know who made a certificate for him. She wrote that she told the acting EEO manager that the subcommittee member may resign. Before the above exchanges, the complainant sent an e-mail to the acting EEO manager which appeared to state that the subcommittee member was resigning his post. Hence, while the acting EEO manager might have spread the word, this more likely than not would have resulted from a mis-communication, not animus. In April 2001 the supervisor wrote the complainant that documents received in one case did not match documents requested, and she should check documents before concluding that they were all there. The complainant countered that she did not do so because Co-worker 2 had the package and delivered it to the supervisor before the complainant had an opportunity to check. The evidence tends to show that the supervisor's belief, even if wrong, was based on the information he had at the time, not animus. The complainant failed to show that she was subject to race, sex and/or age based harassment. The acting EEO manager apparently had a different management style from his predecessor, and the complainant failed to show, by a preponderance of the evidence, that the supervisor's actions were because of her race, sex, age and/or reprisal rather than, as indicated by the record, for the legitimate nondiscriminatory reason of running the office in what the acting EEO manager believed was an efficient matter. Moreover, the actions to which the complainant was subjected were not sufficiently severe to rise to the level of harassment. Accordingly, the complainant failed to prove she was harassed in violation of Title VII or the ADEA. Promotion To prevail in a disparate treatment claim, the complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially establish a prima facie case by demonstrating that 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. 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, the 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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). In applying the disparate treatment analysis of McDonnell Douglas Corp., the prima facie inquiry may be dispensed where the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, the complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The NFC advertised the position of Equal Opportunity Specialist, GS-7 (with a promotion potential to GS-12) under vacancy announcement NFC-01-018. The duties of the position involved working with higher graded EEO Specialists in monitoring NFC's progress and accomplishments of goals and objectives, analyzing statistics on minority representation, and serving as an editor to the EEO Advisor newsletter. The complainant applied for the position, was qualified, and was interviewed, as were other candidates. The selecting official was the complainant's supervisor, and in May 2001 he chose Co-worker 1. He explained that the selectee had excellent communication skills, as demonstrated in her preparation of a variety of comprehensive reports related to substantive EEO programs, providing advice and guidance to managers, supervisors, and employees on EEO matters, developing and conducting informal and sensitivity training to managers and employees on various EEO topics, and serving as an interpreter. He added that the selectee identified barriers to equal employment, and assisted in the correction of such barriers, and suggested her performance was good. The selectee's application indicated that she was performing complex substantive EEO duties. The selecting official was not aware of the complainant's EEO activity when he made his selection decision on May 22, 2001. The reviewing official was aware, but could not recall its details. The agency explained that it chose the selectee based on her qualifications. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). The complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of a selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Both the complainant and the selectee had substantial experience relevant to the job, and the complainant did not show her qualifications were plainly superior to those of the selectee. The complainant failed to prove discrimination regarding not being selected for promotion. Reassignment On July 23, 2001, an EEO counselor contacted the acting EEO manager about the complainant's race, sex, age and reprisal based harassment claim. The complainant was represented by an attorney on this claim. On July 25, 2001, the complainant, at the behest of the acting EEO manager, was reassigned to the position of Secretary, GS-7, in the OCFO, Financial Services Division of the NFC. The reassignment letter by the acting EEO manager stated this was done because of a conflict of interest. The letter stated that of 73 EEO cases being handled at the NFC (EEO office), the complainant's attorney was the representative on 62, and reasoned that the complainant's job required her to interact with representatives of complainants, which in most cases was the attorney on her case. It also reasoned that the complainant's job required her to continuously handle sensitive information in EEO cases filed against the agency, and this constituted a conflict of interest because she served as a representative of the agency. In explaining the reason for the reassignment, the acting EEO manager reiterated what was stated in the reassignment letter. The acting EEO manager's supervisor stated that in discussing the matter with him, the former told him that the complainant had filed an EEO complaint, and identified the risk to the program associated with her complaint and her access to other complaint information. The FAD found that the complainant was not subject to an adverse action because she was reassigned with no loss in grade or pay. It acknowledged that the complainant was reassigned because of her EEO activity, but found this was nondiscriminatory because in the exercise of reasonable management judgment this was done due to a conflict of interest posed by her exposure to sensitive EEO information. The complainant established a prima facie case of reprisal discrimination. She was admittedly reassigned because of her EEO activity. This action was adverse. She did not seek to be reassigned. On appeal, the complainant complains that she had been a Equal Opportunity Assistant for 18½ years and her career and series were involuntarily changed. The agency explained that it reassigned the complainant because she filed an EEO complaint, creating a conflict of interest, and noted her attorney was the representative on most of the EEO cases in the EEO office. In Monroig v. U.S. Commission on Civil Rights, EEOC Appeal No. 07A10012 (April 25, 2002), the employee was a Solicitor, who among other things, served as in-house counsel and represented her employer in matters before the EEOC and the Merit Systems Protection Board. The employee's EEO responsibilities were removed because she filed an informal EEO complaint. Some months later, because of this EEO activity and a memo she wrote concerning the organizational structure of the EEO program which was opposition EEO activity, the employee was reassigned out of her position and into another unit. An EEOC Administrative Judge found reprisal discrimination regarding these employer actions. In Monroig, the employer argued that the filing of the EEO complaint created a conflict of interest and rendered the employee ineffective in her job. The Commission disagreed. It ruled that anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process, and that the act of filing a complaint without more does not so interfere with the employee's performance of her job that it renders her ineffective in her position. It distinguished federal case law where confidential client confidences were disclosed. The Commission disagreed with the employer's suggestion that the act of filing a complaint by in-house counsel is not protected activity, noting this would remove in-house counsel from Title VII protection. The agency's reason for reassigning the complainant does not constitute a legitimate, nondiscriminatory reason. Like in Monroig, the complainant simply brought an EEO claim. This, by itself, does not create a conflict of interest making the complainant ineffective in her job. While there would be a conflict of interest if the complainant handled her own case for the agency's EEO office, there is none, as in Monroig, in handling the EEO cases of others. Also, while the complainant's attorney was the representative for complainants in most of the cases handled by the EEO office in the NFC, this would not prevent the complainant from maintaining a professional relationship in those cases. The employee in Monroig could professionally represent her employer as a defendant in EEO cases even though she had an EEO case against her employer. Like in Monroig, where the employee did not disclose confidential information, there is no evidence in the record suggesting that the complainant gave her attorney inappropriate information about cases in the EEO office. As in Monroig, the agency's reasoning about a conflict of interest would unfairly remove a category of employees from the protection of anti-discrimination statutes. The agency discriminated against the complainant based on her prior EEO activity when it reassigned her. She failed to prove discrimination based on her race, sex or age. The complainant requested compensatory damages. The record contains insufficient information to make a ruling on compensatory damages. This is addressed in the order below. Appraisal The complainant was rated by her new supervisor (white female, born around 1942) in her secretarial position as fully successful. The supervisor explained that given the short time the complainant worked for her, this was the best rating she could give. Also, she considered the input of the acting EEO manager and his predecessor, who provided summary ratings for the periods they supervised the complainant, most of which were covered by the appraisal period. They each rated the complainant fully successful. Given that all three supervisors separately found that the complainant's performance was fully successful during the rating period, and the record does not demonstrate otherwise, the complainant failed to prove reprisal, race, sex or age discrimination regarding this matter. CONCLUSION The FAD finding of no reprisal or discrimination regarding issues 1, 2 and 4, as numbered herein, is affirmed. The FAD finding of no race, sex and age discrimination regarding issue 3, as numbered herein, is affirmed. The FAD finding of no reprisal discrimination regarding issue 3 is reversed. The agency must take remedial actions in accordance with the Order below. ORDER The agency is ordered to take the following remedial actions: 1. Within 15 calendar days of this decision becoming final, offer the complainant the option of canceling her reassignment from her position of Equal Opportunity Assistant (OA), GS-7 at the agency's Office of the Chief Financial Officer (OCFO), Office of the Director, Equal Employment Opportunity Staff, National Finance Center (NFC) in New Orleans, LA and retroactively placing her back into that position, with appropriate step increases, if any. If the complainant chooses to return to her position of Equal Opportunity Assistant (OA), GS-7, the agency shall physically return her to the job within 60 calendar days of this decision becoming final.<2> 2. If the complainant suffered a loss in pay as a result of her reassignment, the agency shall determine the appropriate amount of back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than 90 calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The issue of compensatory damages is REMANDED to the agency. On remand, the agency shall conduct a supplemental investigation on compensatory damages, including providing the complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The agency shall complete the investigation and issue a FAD appealable to the EEOC determining the appropriate amount of damages within 120 calendar days after this decision becomes final.<3> 4. The agency is directed to conduct training for those responsible for making the decision to detail/reassign the complainant from the position of Equal Opportunity Assistant (OA), GS-7. The training shall address responsibilities with respect to eliminating reprisal discrimination in the workplace and what constitutes a conflict of interest within the agency's EEO office. 5. The agency shall consider taking disciplinary action against those responsible for making the decision to detail/reassign the complainant. The agency shall report its decision. 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. 6. The agency shall process any request for attorney fees and costs submitted pursuant to Title VII and the Attorney's Fees paragraph 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 of the agency's calculation of back pay and other benefits due complainant, if any, and evidence that the corrective action has been implemented. The agency shall provide the complainant a copy of the compliance report. POSTING ORDER (G0900) The agency is ordered to post at its Office of the Chief Financial Officer (OCFO), National Finance Center (NFC), Office of the Director, Equal Employment Opportunity Staff, in New Orleans, LA 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 (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 May 16, 2006 __________________ Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ________________ which found that a 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. occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The Department of Agriculture, Office of the Chief Financial Officer (OCFO), National Finance Center (NFC), Office of the Director, Equal Employment Opportunity Staff, in New Orleans, LA supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The EEOC found that an employee was discriminated against in violation of Title VII and the ADEA when the employee was retaliatorily reassigned. The Department of Agriculture, among other things, will offer to the individual the choice of canceling the reassignment, pay the affected individual any damages, and train those responsible for making the reassignment decision how to identify retaliation and prevent it from occurring. The Department of Agriculture, Office of the Chief Financial Officer (OCFO), National Finance Center (NFC), Office of the Director, Equal Employment Opportunity Staff, in New Orleans, LA will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. _______________________________ Date Posted: ____________________ Posting Expires: ________________ 29 C.F.R. Part 1614 1The FAD defined claims 2 and 3 as constituting additional examples of harassment. A review of the record reveals that these are more appropriately defined as individual disparate treatment claims. 2If the agency is unable to timely comply due to the natural disasters of Hurricanes Katrina or Rita, this should be raised with a Equal Employment Opportunity Commission, Office of Federal Operations Compliance Officer. 3There is no entitlement to compensatory damages or attorney's fees and costs in the administrative process in connection with an ADEA claim, which includes a claim that an action was taken in reprisal for EEO activity under the ADEA. Falks v. Department of the Treasury, EEOC Appeal No. 05960250 (September 5, 1996); 29 C.F.R. § 1614.501(e)(1).	[ "Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)", "McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)", "Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995)", "Falks v. Department of the Treasury, EEOC Appeal No. 05960...	[ -0.12796157598495483, 0.10895512998104095, -0.014688648283481598, 0.07204880565404892, -0.010152637027204037, 0.07496435195207596, -0.023906098678708076, -0.03727903589606285, -0.07493845373392105, 0.030907364562153816, 0.014870980754494667, -0.043980058282613754, -0.043800998479127884, -0...
69	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a40382.txt	01a40382.txt	TXT	text/plain	28,937	Ronald A. Tate v. Department of the Air Force 01A40382 July 26, 2005 . Ronald A. Tate, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.	July 26, 2005	Appeal Number: 01A40382 Case Facts: Complainant timely initiated an appeal from a final agency decision (FAD) concerning two consolidated 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. Complainant was employed as a Freight Rate Assistant, GS-2131-05, at the agency's Columbus Air Force Base, Mississippi.<1> Complainant filed two formal complaints on March 7, 2001 and April 13, 2001, respectively. Therein, complainant claimed that he was discriminated against on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity. Complainant's complaints were comprised of the following claims<2>: (a) the other collateral duty EEO Counselors would not meet with him, return his phone calls, answer his e-mails, or process active EEO complaints; thus overburdening him, and forcing him to work on complaints involving his own supervisory chain (Complaint 1, Agency No. AE0J01004); (b) management officials ignored his pleas for help in obtaining [collateral duty EEO Counselors] (Complaint 1, Agency No. AE0J01004); (c) in June 1999, he was directed to move from the office, wherein he performed his EEO duties, into a storage closet (Complaint 1, Agency No. AE0J01004); (d) complainant's second-level supervisor and his supervisor interrupted meetings with him and witnesses, or while he was performing other EEO duties; demanding to know how much longer he was going to be, because he was needed; and required him to tell them how much time he spent on EEO activities (Complaint 1, Agency No. AE0J01004); (e) on February 25, 2000, two collateral duty EEO Counselors threatened him with reprisal on his appraisal; charged him Absent Without Leave (AWOL); and gave him an ultimatum to quit doing EEO counseling, or else do it full time, so that they could hire a replacement (Complaint 1, Agency No. AE0J01004); (f) on June 2, 2000, in response to the request of a Logistics Director, a former CPO Chief told him to assign a certain complaint to another collateral duty EEO Counselor (Complaint 1, Agency No. AE0J01004); (g) he was denied opportunities to attend Cargo Movement Operation Systems (CMOS) training (Complaint 1, Agency No. AE0J01004); (h) his supervisor secretly documented his arrival time whenever he was a few minutes late (Complaint 1, Agency No. AE0J01004); (i) his supervisor charged him leave or AWOL when he arrived late, but did not do the same when a former supervisor arrived late (Complaint 1, Agency No. AE0J01004); (j) on August 11, 1999, complainant's third-level supervisor threatened to carry him AWOL, and carried him AWOL on June 26, 2000 (Complaint 1, Agency No. AE0J01004); (k) on October 25, 2000, he was issued a memorandum for record concerning duty hours and responsibility (Complaint 1, Agency No. AE0J01004); (l) on January 5, 2001, he was issued a letter of counseling concerning tardiness (Complaint 1, Agency No. AE0J01004); (m) an Acting Civilian Personnel Officer (CPO) Chief/Classification] allegedly told a named agency employee (employee A) 14th Civil Engineering Squadron (14 CES), that employee A did not have to pay any attention to complainant, that complainant solicits complaints from black males, and that complainant should not work a certain complaint involving employee A because of a conflict of interest (Complaint 1, Agency No. AE0J01004); (n) Complainant's third-level supervisor said that complainant was trying to intimidate management (Complaint 1, Agency No. AE0J01004); (o) management requested a staff assistance visit (SAV) to evaluate the EEO program, rewrote its results to blame him for the program's deficiencies, and did not assign him any help to carry out the recommended actions (Complaint 1, Agency No. AE0J01004); (p) on January 17, 2001, he was relieved of his Chief EEO Counselor duties (Complaint 1, Agency No. AE0J01004); and (q) on December 11, 2000, he was not selected for the position of Supply Technician, GS-2005-06 (Complaint 2, Agency No. AE0J01010). The agency consolidated complainant's two captioned complaints, and conducted an investigation. At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested a hearing but subsequently withdrew the request in favor of a FAD. In its FAD, dated September 30, 2003, the agency found no discrimination. Regarding claims (a) - (p), the agency concluded that complainant failed to prove that he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile. Regarding claim (q), the agency determined that complainant failed to establish a prima facie case of sex discrimination. The agency further determined that complainant established a prima facie case of race and reprisal discrimination because the selectee, not in complainant's protected classes, was selected for the position of Supply Technician. The agency indicated, however, that management articulated a legitimate, nondiscriminatory reason for its non-selection of complainant. The agency claimed that complainant did not establish that more likely than not, management's articulated reasons were a pretext to mask unlawful discrimination. Regarding claim (a), the record reflects that a collateral duty EEO Counselors (E1) stated that in October 2000, he became an EEO Counselor, and took training in November 2000. E1 further stated that in December 2000, after he returned from EEO Counselor training, he informed complainant that he was back in the office. E1 further stated that he worked "not too far" from complainant, and had an e-mail address that complainant could use. E1 stated that he received a certified letter from complainant "but that did not make sense as to why he sent it." Further, the record reflects that another collateral duty EEO Counselor (E2) stated that in early 1998, he volunteered to be a collateral EEO Counselor. E2 further stated that between March 2000 and December 2000, he did not work on any EEO complaints "because my full time job was keeping me too busy." With respect to complainant's assertion that he tried to give him cases but he refused to take them, E2 stated that complainant did not try to give him cases. Specifically, E2 stated "I told him that I was too busy to take any cases and he did not offer any." Regarding claim (b), the record reflects that the former CPO stated that generally management would ask for volunteers to be a collateral duty EEO Counselor. The CPO further stated that because this assignment was collateral duty, there are generally not many volunteers. Regarding claim (c), the record reflects that complainant's supervisor (S1) stated that complainant was not directed to move from his office into a storage closet. S1 further stated that complainant was assigned an office "about 50-100 feet from our office to do his EEO activity." S1 stated that complainant's office had a phone and "it was about 12 x15 feet, which is larger than my office." Furthermore, S1 stated that the union president also works out of the same office. The record also reflects that complainant's third-level supervisor (S3) stated that in the beginning, complainant handled several EEO complaints while worked in his Freight Rate Assistant office. S3 further stated that in the mid-1999 complainant started handling more EEO complaints, and because he did not have a private office "we took a vacant office and provided that to him to use to do his EEO work." S3 stated that complainant maintained his "big office" for his Freight Rate Assistant duties while maintaining a separate private office for his EEO work. Furthermore, S3 stated that complainant's EEO office was "approximately 8 x 10 feet (not a closet)." Regarding claim (d), the record reflects that S1 stated that complainant's claim that he constantly interrupted him while he was performing EEO duties to be false. S1 further stated that on one occasion complainant received a telephone call, but that complainant was not at his desk. S1 stated that he searched for complainant because he did not know where complainant was because complainant did not let him know of his whereabouts. S1 stated "I saw the EEO door closed and so I knocked on it to tell him he had a phone call." Furthermore, S1 stated that it was the only time he interrupted complainant while he was performing EEO duties. Regarding claim (e), the record reflects that S2 stated that because complainant had a problem being at his desk, he informed complainant that "his primary job is Freight Rate Assistant and if he is always gone from the job how can he be rated like others." S2 further stated "I don't recall him being threatened." With respect to complainant's assertion that he and his former supervisor informed him to either do EEO counseling full time or quit EEO counseling because it was interfering with his primary job, S2 stated that he and complainant' s former supervisor did not direct complainant "to do one or the other." S2 stated that complainant indicated that doing all of the EEO counseling work was giving him a headache, and that he "suggested that he should only do one of the jobs." S2 stated "I recall that his comment about only doing one of the jobs was agreed to by us as being a good idea." The record further reflects that S3 stated that complainant was charged with AWOL based on his attendance. S3 further stated the "scope of activity/actions by [Complainant] that led to this action was that he would be gone for hours without any supervisor knowing where he was." S3 stated that when inquired about his whereabouts, complainant "would tell us I am working an EEO case...You don't need to know'." Furthermore, S3 stated that complainant was issued letters of counseling that informed him that he must report to his supervisor to indicate where he was, and how he could be contacted. Regarding claim (f), the record reflects that the former CPO stated that CPOs do not have a role in assigning an EEO Counselor for EEO complaints and in scheduling EEO cases for investigation. The former CPO further stated that "at times, an individual may come to the CPO office and present an EEO issue, and then they were referred to [Complainant]." The former CPO stated that at one point she tried to assist complainant because "some problems arose because complainant failed to properly coordinate some investigations." Specifically, the former CPO stated that she showed complainant how to better coordinate the EEO investigations with installation organizations. Regarding claim (g), the record reflects that S1 stated that he did not deny complainant opportunities to attend the CMOS training because "the only CMOS training is for the administrator and [named agency official] is the administrator and he went to the training before I got here." S1 further stated that he asked complainant and a co-worker if they wanted to take HAZMAT training but "neither one wanted to." Regarding claim (h), the record reflects that S3 stated that he documented complainant's attendance because he was the only employee with a tardiness problem. S3 further stated that complainant had a habit of being tardy, and that he "had a habit of not calling in or coming in later than he said he would come when he did call." S3 stated that while one female employee had an attendance problem, she would call in and had medical problems. Furthermore, S3 stated that while other employees "sporadically" reported to work 5 to 10 minutes late "but I did not document those others because they did not make a habit of showing up late." Regarding claim (i), the record reflects that S3 stated that "once again, [Complainant] did not show up at work and he did not call anyone." S3 further stated that complainant informed him that he did not report to work because his car broke down, he walked home, and "then went back to his car and could not get into work." S3 stated that since complainant was at home, he could have called in "to tell us what was happening." Furthermore, S3 stated that because complainant did not call in, he was charged AWOL. Regarding claim (j), the record reflects that S3 stated that complainant would report to work late "at times it was around 1000 or 1100 hours." S3 further stated that complainant "did not call to let anyone know where he was." S3 stated that when asked about his whereabouts, complainant responded that he was doing EEO work. S3 stated "I believe that is the time that he was told (not threatened) that if he did not tell his supervisor where he was he would be charged AWOL." S3 stated that in August 1999, he wrote a memorandum about reporting to work on time "however that memorandum was not directed to [Complainant]." Furthermore, S3 stated that he sent the memorandum to all personnel in the Transportation Office. Regarding claim (k), S1 stated that he did not issue complainant a memorandum for record (MFR) because he was doing EEO work. S1 further stated that even though the October 25, 2000 MFR was "addressed' to [Complainant], in reality I prepared a generic MFR and in my word processor I sent it addressed to each employee working for me." S1 stated that he also counseled complainant on the same date because he was continuously reporting to work late and I sent the MFR "to get his attention." S1 stated "I decided that although he was the problem, rather than just sending him the notification I would send it to all of my employees, and so I did." Furthermore, S1 stated that in his MFR, complainant had unexcused absences which could have been charged as being AWOL but "I did not charge him with being AWOL." Regarding claim (l), the record reflects that S1 stated that on January 5, 2001, he issued complainant a letter of counseling concerning his tardiness. S1 further stated "I treated him like I would anyone else with his attendance problems." Regarding claim (m), the former Acting CPO stated that he had no recollection of telling a named agency official that he did not have to pay any attention to complainant, that he solicits complaints from African-American employees, and that complainant should not work a certain complaint involving a named official because of a conflict of interest. Regarding claim (n), S3 acknowledged making a statement that complainant was using his EEO position to try to intimidate management. Specifically, S3 stated "I recall that on an occasion [Complainant] was being asked about his whereabouts, he responded to me and [Director of Logistics] that he worked for the Wing Commander when he did EEO work, and if we did not like what he was doing he would call the Wing Commander on us." S3 further stated "I found that type of comment to demonstrate [Complainant's] perception that he could call our supervisor if we tried to do anything to him." S3 stated that he and the Director were concerned about complainant's attendance and his whereabouts "since in his primary job he worked for us as a Freight Rate Assistant." Furthermore, S3 stated that complainant's response was an attempt to intimidate him and the Director from doing their job. Regarding claim (o), the record reflects that complainant's fifth-level supervisor (S5) stated that during the relevant time period, he was assigned to oversee the EEO complaints program by the 14 FTW/CC, and also served as the director of the Commander's immediate staff, including complainant in his role as Chief EEO Counselor . S5 further stated that he became concerned the EEO Complaints program was not functioning effectively; and that the ability of the EEO Counselors "to perform their functions independently appeared constrained by the fact that all counselors served as a collateral role." S5 stated that he recommended that the Commander bring in a headquarters Staff Assistance Visit (SAV) to take a look at the program. S5 stated that the SAV "was brought in to help all affected staff members, including [complainant], improve their programs." Further, S5 stated that following the SAV's findings, he made a determination that complainant and other collateral counselors had the classroom training needed to perform their duties, but lacked the practical and managerial experience to successfully run the program. S5 stated that he made a recommendation that the agency send complainant to TDY to get some-on-the job training at a base with a mature and successful program; bring in a TDY team composed of experienced counselors to work our deficiencies while providing additional on-the-job training to all collateral counselors; and hire a full-time Chief Counselor. S5 stated that the Commander and SAV agreed with his recommendations. S5 stated that he drafted guidance for complainant "that outlined the shortfalls identified by the SAV team, our game plan to provide on-the-job training for the collateral counselors, and specific actions requested of [Complainant]." S5 stated that the intent of the guidance was to help complainant "bring the program up to speed and sustain it." S5 stated that he met with complainant on multiple occasions to discuss the program but that complainant "never initiated the contact and has never asked for assistance." Regarding claim (p), the record reflects that S5 stated that on January 27, 2001, he relieved complainant from his role as collateral duty Chief EEO Counselor because "I lost confidence in his ability to manage the program and make it an effective tool in resolving EEO complaints." S5 further stated that the following three factors led him to make the determination to relieve complainant of his collateral duty: (1) the SAV highlighted the EEO Complaints program to be seriously deficient; (2) complainant failed to respond to the guidance he provided after the SAV (only attended 2 of his weekly wing staff agency meetings, 2 of the Commander 's weekly commander staff meetings, did not provide briefings to the unit commanders at the weekly staff meetings, and did not provide him periodic updates on program status); and (3) the Lackland incident.<3> Specifically, S5 stated that based on the Lackland incident and the facts surrounding it, he assessed that complainant "lacked the judgment needed to perform as an EEO Counselor, that he lacked the interpersonal skills needed to be successful in the role, and that he lacked the focus needed to have made the training worthwhile." Regarding claim (q), the record reflects that 16 candidates, including complainant, were considered qualified for the position of Supply Technician, and were referred to the selecting official (SO) for consideration. The record further reflects that the SO stated that he sought someone with experience, availability and performance. The SO further stated that he chose the selectee for the position of Supply Technician based on his qualifications and extensive work experience. Specifically, the SO stated that the selectee worked "numerous years in the very slot" that related to the subject position. The SO stated that the selectee "was in the position as a military person and then hired back on as a purchasing agent for civil engineering and he worked on that position for 3 or 4 years before the position was open." The SO stated that the selectee was "instrumental in transferring the old supply system into the CE purchasing material acquisition for CE (CEMAS). Specifically, the SO stated that the selectee "was here and uploaded the system." The SO stated that he did not select complainant for the subject position because he did not have computer knowledge, and did not have work experience in the Civil Engineering area. Furthermore, the SO stated that complainant's race, sex and prior protected activity were not factors in his determination not to select him for the subject position. Further, the record contains a copy of complainant's e-mail correspondence dated November 15, 2000 to the SO. Therein, complainant stated "the complainant agrees that the selectee was indeed more qualified and discrimination is not an issue in this matter." Claim (q) A claim of disparate treatment is examined under the three-part Legal Analysis: Upon review of the record, the Commission finds that the agency articulated legitimate, non-discriminatory reasons for its employment actions, which we determine were not persuasively rebutted by complainant. Complainant has not demonstrated that the agency's articulated reasons for its employment actions were a pretext for discrimination. Claims (a) - (p) Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is actionable only if the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The harassers' 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 (March 8, 1994). The Commission finds that the environment created within complainant's workplace was not sufficient to show a hostile work environment due to his race, sex and prior protected activity. Therefore, we conclude that complainant failed to establish his claim of unlawful discrimination due to harassment. Final Decision: Accordingly, the agency's final decision finding no discrimination was proper and is AFFIRMED.	Ronald A. Tate v. Department of the Air Force 01A40382 July 26, 2005 . Ronald A. Tate, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency. Appeal No. 01A40382 Agency Nos. AE0J01004 AE0J01010 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning two consolidated 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. Complainant was employed as a Freight Rate Assistant, GS-2131-05, at the agency's Columbus Air Force Base, Mississippi.<1> Complainant filed two formal complaints on March 7, 2001 and April 13, 2001, respectively. Therein, complainant claimed that he was discriminated against on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity. Complainant's complaints were comprised of the following claims<2>: (a) the other collateral duty EEO Counselors would not meet with him, return his phone calls, answer his e-mails, or process active EEO complaints; thus overburdening him, and forcing him to work on complaints involving his own supervisory chain (Complaint 1, Agency No. AE0J01004); (b) management officials ignored his pleas for help in obtaining [collateral duty EEO Counselors] (Complaint 1, Agency No. AE0J01004); (c) in June 1999, he was directed to move from the office, wherein he performed his EEO duties, into a storage closet (Complaint 1, Agency No. AE0J01004); (d) complainant's second-level supervisor and his supervisor interrupted meetings with him and witnesses, or while he was performing other EEO duties; demanding to know how much longer he was going to be, because he was needed; and required him to tell them how much time he spent on EEO activities (Complaint 1, Agency No. AE0J01004); (e) on February 25, 2000, two collateral duty EEO Counselors threatened him with reprisal on his appraisal; charged him Absent Without Leave (AWOL); and gave him an ultimatum to quit doing EEO counseling, or else do it full time, so that they could hire a replacement (Complaint 1, Agency No. AE0J01004); (f) on June 2, 2000, in response to the request of a Logistics Director, a former CPO Chief told him to assign a certain complaint to another collateral duty EEO Counselor (Complaint 1, Agency No. AE0J01004); (g) he was denied opportunities to attend Cargo Movement Operation Systems (CMOS) training (Complaint 1, Agency No. AE0J01004); (h) his supervisor secretly documented his arrival time whenever he was a few minutes late (Complaint 1, Agency No. AE0J01004); (i) his supervisor charged him leave or AWOL when he arrived late, but did not do the same when a former supervisor arrived late (Complaint 1, Agency No. AE0J01004); (j) on August 11, 1999, complainant's third-level supervisor threatened to carry him AWOL, and carried him AWOL on June 26, 2000 (Complaint 1, Agency No. AE0J01004); (k) on October 25, 2000, he was issued a memorandum for record concerning duty hours and responsibility (Complaint 1, Agency No. AE0J01004); (l) on January 5, 2001, he was issued a letter of counseling concerning tardiness (Complaint 1, Agency No. AE0J01004); (m) an Acting Civilian Personnel Officer (CPO) Chief/Classification] allegedly told a named agency employee (employee A) 14th Civil Engineering Squadron (14 CES), that employee A did not have to pay any attention to complainant, that complainant solicits complaints from black males, and that complainant should not work a certain complaint involving employee A because of a conflict of interest (Complaint 1, Agency No. AE0J01004); (n) Complainant's third-level supervisor said that complainant was trying to intimidate management (Complaint 1, Agency No. AE0J01004); (o) management requested a staff assistance visit (SAV) to evaluate the EEO program, rewrote its results to blame him for the program's deficiencies, and did not assign him any help to carry out the recommended actions (Complaint 1, Agency No. AE0J01004); (p) on January 17, 2001, he was relieved of his Chief EEO Counselor duties (Complaint 1, Agency No. AE0J01004); and (q) on December 11, 2000, he was not selected for the position of Supply Technician, GS-2005-06 (Complaint 2, Agency No. AE0J01010). The agency consolidated complainant's two captioned complaints, and conducted an investigation. At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested a hearing but subsequently withdrew the request in favor of a FAD. In its FAD, dated September 30, 2003, the agency found no discrimination. Regarding claims (a) - (p), the agency concluded that complainant failed to prove that he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile. Regarding claim (q), the agency determined that complainant failed to establish a prima facie case of sex discrimination. The agency further determined that complainant established a prima facie case of race and reprisal discrimination because the selectee, not in complainant's protected classes, was selected for the position of Supply Technician. The agency indicated, however, that management articulated a legitimate, nondiscriminatory reason for its non-selection of complainant. The agency claimed that complainant did not establish that more likely than not, management's articulated reasons were a pretext to mask unlawful discrimination. Regarding claim (a), the record reflects that a collateral duty EEO Counselors (E1) stated that in October 2000, he became an EEO Counselor, and took training in November 2000. E1 further stated that in December 2000, after he returned from EEO Counselor training, he informed complainant that he was back in the office. E1 further stated that he worked "not too far" from complainant, and had an e-mail address that complainant could use. E1 stated that he received a certified letter from complainant "but that did not make sense as to why he sent it." Further, the record reflects that another collateral duty EEO Counselor (E2) stated that in early 1998, he volunteered to be a collateral EEO Counselor. E2 further stated that between March 2000 and December 2000, he did not work on any EEO complaints "because my full time job was keeping me too busy." With respect to complainant's assertion that he tried to give him cases but he refused to take them, E2 stated that complainant did not try to give him cases. Specifically, E2 stated "I told him that I was too busy to take any cases and he did not offer any." Regarding claim (b), the record reflects that the former CPO stated that generally management would ask for volunteers to be a collateral duty EEO Counselor. The CPO further stated that because this assignment was collateral duty, there are generally not many volunteers. Regarding claim (c), the record reflects that complainant's supervisor (S1) stated that complainant was not directed to move from his office into a storage closet. S1 further stated that complainant was assigned an office "about 50-100 feet from our office to do his EEO activity." S1 stated that complainant's office had a phone and "it was about 12 x15 feet, which is larger than my office." Furthermore, S1 stated that the union president also works out of the same office. The record also reflects that complainant's third-level supervisor (S3) stated that in the beginning, complainant handled several EEO complaints while worked in his Freight Rate Assistant office. S3 further stated that in the mid-1999 complainant started handling more EEO complaints, and because he did not have a private office "we took a vacant office and provided that to him to use to do his EEO work." S3 stated that complainant maintained his "big office" for his Freight Rate Assistant duties while maintaining a separate private office for his EEO work. Furthermore, S3 stated that complainant's EEO office was "approximately 8 x 10 feet (not a closet)." Regarding claim (d), the record reflects that S1 stated that complainant's claim that he constantly interrupted him while he was performing EEO duties to be false. S1 further stated that on one occasion complainant received a telephone call, but that complainant was not at his desk. S1 stated that he searched for complainant because he did not know where complainant was because complainant did not let him know of his whereabouts. S1 stated "I saw the EEO door closed and so I knocked on it to tell him he had a phone call." Furthermore, S1 stated that it was the only time he interrupted complainant while he was performing EEO duties. Regarding claim (e), the record reflects that S2 stated that because complainant had a problem being at his desk, he informed complainant that "his primary job is Freight Rate Assistant and if he is always gone from the job how can he be rated like others." S2 further stated "I don't recall him being threatened." With respect to complainant's assertion that he and his former supervisor informed him to either do EEO counseling full time or quit EEO counseling because it was interfering with his primary job, S2 stated that he and complainant' s former supervisor did not direct complainant "to do one or the other." S2 stated that complainant indicated that doing all of the EEO counseling work was giving him a headache, and that he "suggested that he should only do one of the jobs." S2 stated "I recall that his comment about only doing one of the jobs was agreed to by us as being a good idea." The record further reflects that S3 stated that complainant was charged with AWOL based on his attendance. S3 further stated the "scope of activity/actions by [Complainant] that led to this action was that he would be gone for hours without any supervisor knowing where he was." S3 stated that when inquired about his whereabouts, complainant "would tell us I am working an EEO case...You don't need to know'." Furthermore, S3 stated that complainant was issued letters of counseling that informed him that he must report to his supervisor to indicate where he was, and how he could be contacted. Regarding claim (f), the record reflects that the former CPO stated that CPOs do not have a role in assigning an EEO Counselor for EEO complaints and in scheduling EEO cases for investigation. The former CPO further stated that "at times, an individual may come to the CPO office and present an EEO issue, and then they were referred to [Complainant]." The former CPO stated that at one point she tried to assist complainant because "some problems arose because complainant failed to properly coordinate some investigations." Specifically, the former CPO stated that she showed complainant how to better coordinate the EEO investigations with installation organizations. Regarding claim (g), the record reflects that S1 stated that he did not deny complainant opportunities to attend the CMOS training because "the only CMOS training is for the administrator and [named agency official] is the administrator and he went to the training before I got here." S1 further stated that he asked complainant and a co-worker if they wanted to take HAZMAT training but "neither one wanted to." Regarding claim (h), the record reflects that S3 stated that he documented complainant's attendance because he was the only employee with a tardiness problem. S3 further stated that complainant had a habit of being tardy, and that he "had a habit of not calling in or coming in later than he said he would come when he did call." S3 stated that while one female employee had an attendance problem, she would call in and had medical problems. Furthermore, S3 stated that while other employees "sporadically" reported to work 5 to 10 minutes late "but I did not document those others because they did not make a habit of showing up late." Regarding claim (i), the record reflects that S3 stated that "once again, [Complainant] did not show up at work and he did not call anyone." S3 further stated that complainant informed him that he did not report to work because his car broke down, he walked home, and "then went back to his car and could not get into work." S3 stated that since complainant was at home, he could have called in "to tell us what was happening." Furthermore, S3 stated that because complainant did not call in, he was charged AWOL. Regarding claim (j), the record reflects that S3 stated that complainant would report to work late "at times it was around 1000 or 1100 hours." S3 further stated that complainant "did not call to let anyone know where he was." S3 stated that when asked about his whereabouts, complainant responded that he was doing EEO work. S3 stated "I believe that is the time that he was told (not threatened) that if he did not tell his supervisor where he was he would be charged AWOL." S3 stated that in August 1999, he wrote a memorandum about reporting to work on time "however that memorandum was not directed to [Complainant]." Furthermore, S3 stated that he sent the memorandum to all personnel in the Transportation Office. Regarding claim (k), S1 stated that he did not issue complainant a memorandum for record (MFR) because he was doing EEO work. S1 further stated that even though the October 25, 2000 MFR was "addressed' to [Complainant], in reality I prepared a generic MFR and in my word processor I sent it addressed to each employee working for me." S1 stated that he also counseled complainant on the same date because he was continuously reporting to work late and I sent the MFR "to get his attention." S1 stated "I decided that although he was the problem, rather than just sending him the notification I would send it to all of my employees, and so I did." Furthermore, S1 stated that in his MFR, complainant had unexcused absences which could have been charged as being AWOL but "I did not charge him with being AWOL." Regarding claim (l), the record reflects that S1 stated that on January 5, 2001, he issued complainant a letter of counseling concerning his tardiness. S1 further stated "I treated him like I would anyone else with his attendance problems." Regarding claim (m), the former Acting CPO stated that he had no recollection of telling a named agency official that he did not have to pay any attention to complainant, that he solicits complaints from African-American employees, and that complainant should not work a certain complaint involving a named official because of a conflict of interest. Regarding claim (n), S3 acknowledged making a statement that complainant was using his EEO position to try to intimidate management. Specifically, S3 stated "I recall that on an occasion [Complainant] was being asked about his whereabouts, he responded to me and [Director of Logistics] that he worked for the Wing Commander when he did EEO work, and if we did not like what he was doing he would call the Wing Commander on us." S3 further stated "I found that type of comment to demonstrate [Complainant's] perception that he could call our supervisor if we tried to do anything to him." S3 stated that he and the Director were concerned about complainant's attendance and his whereabouts "since in his primary job he worked for us as a Freight Rate Assistant." Furthermore, S3 stated that complainant's response was an attempt to intimidate him and the Director from doing their job. Regarding claim (o), the record reflects that complainant's fifth-level supervisor (S5) stated that during the relevant time period, he was assigned to oversee the EEO complaints program by the 14 FTW/CC, and also served as the director of the Commander's immediate staff, including complainant in his role as Chief EEO Counselor . S5 further stated that he became concerned the EEO Complaints program was not functioning effectively; and that the ability of the EEO Counselors "to perform their functions independently appeared constrained by the fact that all counselors served as a collateral role." S5 stated that he recommended that the Commander bring in a headquarters Staff Assistance Visit (SAV) to take a look at the program. S5 stated that the SAV "was brought in to help all affected staff members, including [complainant], improve their programs." Further, S5 stated that following the SAV's findings, he made a determination that complainant and other collateral counselors had the classroom training needed to perform their duties, but lacked the practical and managerial experience to successfully run the program. S5 stated that he made a recommendation that the agency send complainant to TDY to get some-on-the job training at a base with a mature and successful program; bring in a TDY team composed of experienced counselors to work our deficiencies while providing additional on-the-job training to all collateral counselors; and hire a full-time Chief Counselor. S5 stated that the Commander and SAV agreed with his recommendations. S5 stated that he drafted guidance for complainant "that outlined the shortfalls identified by the SAV team, our game plan to provide on-the-job training for the collateral counselors, and specific actions requested of [Complainant]." S5 stated that the intent of the guidance was to help complainant "bring the program up to speed and sustain it." S5 stated that he met with complainant on multiple occasions to discuss the program but that complainant "never initiated the contact and has never asked for assistance." Regarding claim (p), the record reflects that S5 stated that on January 27, 2001, he relieved complainant from his role as collateral duty Chief EEO Counselor because "I lost confidence in his ability to manage the program and make it an effective tool in resolving EEO complaints." S5 further stated that the following three factors led him to make the determination to relieve complainant of his collateral duty: (1) the SAV highlighted the EEO Complaints program to be seriously deficient; (2) complainant failed to respond to the guidance he provided after the SAV (only attended 2 of his weekly wing staff agency meetings, 2 of the Commander 's weekly commander staff meetings, did not provide briefings to the unit commanders at the weekly staff meetings, and did not provide him periodic updates on program status); and (3) the Lackland incident.<3> Specifically, S5 stated that based on the Lackland incident and the facts surrounding it, he assessed that complainant "lacked the judgment needed to perform as an EEO Counselor, that he lacked the interpersonal skills needed to be successful in the role, and that he lacked the focus needed to have made the training worthwhile." Regarding claim (q), the record reflects that 16 candidates, including complainant, were considered qualified for the position of Supply Technician, and were referred to the selecting official (SO) for consideration. The record further reflects that the SO stated that he sought someone with experience, availability and performance. The SO further stated that he chose the selectee for the position of Supply Technician based on his qualifications and extensive work experience. Specifically, the SO stated that the selectee worked "numerous years in the very slot" that related to the subject position. The SO stated that the selectee "was in the position as a military person and then hired back on as a purchasing agent for civil engineering and he worked on that position for 3 or 4 years before the position was open." The SO stated that the selectee was "instrumental in transferring the old supply system into the CE purchasing material acquisition for CE (CEMAS). Specifically, the SO stated that the selectee "was here and uploaded the system." The SO stated that he did not select complainant for the subject position because he did not have computer knowledge, and did not have work experience in the Civil Engineering area. Furthermore, the SO stated that complainant's race, sex and prior protected activity were not factors in his determination not to select him for the subject position. Further, the record contains a copy of complainant's e-mail correspondence dated November 15, 2000 to the SO. Therein, complainant stated "the complainant agrees that the selectee was indeed more qualified and discrimination is not an issue in this matter." Claim (q) 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 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. 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 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 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 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). Upon review of the record, the Commission finds that the agency articulated legitimate, non-discriminatory reasons for its employment actions, which we determine were not persuasively rebutted by complainant. Complainant has not demonstrated that the agency's articulated reasons for its employment actions were a pretext for discrimination. Claims (a) - (p) Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is actionable only if the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The harassers' 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 (March 8, 1994). The Commission finds that the environment created within complainant's workplace was not sufficient to show a hostile work environment due to his race, sex and prior protected activity. Therefore, we conclude that complainant failed to establish his claim of unlawful discrimination due to harassment. Accordingly, the agency's final decision finding no discrimination 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 26, 2005 __________________ Date 1We note that from March 1998 through January 17, 2001, complainant was assigned collateral duties as the Chief EEO Counselor. 2For purposes of clarity, the Commission has redesignated complainant's claims as claims (a) - (q). 3The record reveals that the agency sent complainant TDY to Lackland for him to gain personal knowledge on how to have the EEO program be more efficient.	[ "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)", "Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)", "Roberts v. Department of Transportati...	[ 0.003065125783905387, 0.024809502065181732, -0.05360642820596695, 0.05607885867357254, 0.06425328552722931, 0.048113830387592316, -0.018793122842907906, 0.02512351982295513, -0.054045889526605606, 0.04421059042215347, 0.04172362759709358, -0.022530602291226387, -0.0369890034198761, 0.00481...
70	https://www.eeoc.gov/sites/default/files/decisions/2022_07_20/2022002003.pdf	2022002003.pdf	PDF	application/pdf	17,134		February 17, 2022	Appeal Number: 2022002003 Background: During the period at issue , Complainant worked for the Agency a s a Loan Specialist . On July 13, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, color, disabilit y, age, and in reprisal for prior protected EEO activity . On February 17, 2022, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: a. On August 10, 2020, Complainant was terminated from her position; and b. Between June 10, 2020 and August 10, 2020, she was not provided with a reasonable accommodation for her disability. The Agency reasoned that Complainant did not initiate EEO contact until June 10, 2021, outside of the applicable time limit. The Agency noted that Complainant contacted the EEO Office on several occasions prior to June 10, 2021 (including on September 1, 2020) to file an EEO complaint but did not pursue the complaint until June 10, 2021 when she returned the Agency’s pre-complaint documents. The instant appeal followed. On appeal, Complainant assert s that her EEO contact was timely. Specifically, Compla inant asserts that she initiated EEO contact with an Agency EEO Official on September 1, 2020, but got no res ponse. She assert s further that she subsequently contacted the EEOC who advised her to contact the Agency EEO Official to file an EEO complaint with the Agenc y. She asserts that she followed up with the Agency EE O Official regarding filing a complaint. In addition, Complainant asserts that she had difficulty contacting the Agency because, during her employment with the Agency, her personal computer “crashed” which made access to email difficult, and she did not have a personal phone. 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 da te of the action. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that they were not notified of the time limits and was not otherwise aware of them, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence they were prevented by circumstances b eyond their control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, we conclude the Agency improperly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. T he record reflects that Complainant contacted an Agency EEO Official on September 1, 2020, via email in which she alleged that she had been discriminated against and wanted to file a formal EEO complaint. In addition, on appeal, Complainant asserts that sh e contacted this Commission (EEOC) after not hearing from the Agency EEO Official , and on November 16, 2020, the EEOC informed her to follow up with the Agency EEO Official to file an EEO complaint with the Agency and to document her attempts to make such contact . The record reflects that Complainant followed up with the Agency EEO Official via email on November 17, 2020. The Deputy Administrator (DA) for the Agency’s Office of Diversity, Inclusion, and Civil Rights (ODICR) responded to Complainant via email dated November 17, 2020, and notified Complainant that the Agency EEO Official no longe r worked in that office. DA requested that Complainant complete an Intake Form, which she attached to the email , and return the Intake form to a specified email address for EEO inquiries. On January 11, 2021, Complainant sent an email to the address for EEO inquiries , which DA provided to her, again s tating that she wanted to file a discrimination complaint and asked for “help.” On January 11, 2021, DA responded that she previously sent the Intake form to Complainant on November 17, 2020. On June 9, 2021, DA sent an email to Complainant stating that she was informed that Complainant contacted the Agency’s Conflict Resolution Center and wanted to file an EEO complaint. DA stated that she had previously sent Complainant the forms and that she was now incl uding them for a third time. In response, Complainant, via email dated June 9, 2021 told DA that “it was easy [for the Agency] to blame [her]” and that while working for the Agency her laptop crashe d and she has had difficulty accessing h er email. Compla inant , on appeal, also asserts that , during the time she worked for the Agency, her personal laptop crashed and she had no phone. 2 The record contains a copy of Complainant’s termination letter informing her that her termination would be effective August 10, 2020, and that if she wanted to file an EEO complaint to contact the Agency’s ODICR within 45 days of receipt of the termination letter . We also note that w hile the termination letter provided a phone number to initiate EEO contact, it did not provide a mailing address. The record also reflect s that during this time period ODICR was on a full telework schedule due to the pandemic and that it was sending all EEO correspondence vi a electronic mail. Based on the foregoing circumstances, we find that Com plainant , who had difficulty accessing her email due to her “crashed” lapt op and no phone, initiated EEO contact on September 1, 2020 (rather than on June 10, 2021 as st ated in the Agency’s final decision) with an intent to pursue the EEO process and follo wed up with the Agency’s ODCIR numerous times in a n attempt to pursue a formal complaint .3 Complainant’s September 1, 2020 EEO contact is timely with respect to claims (a)- (b). The record reflects that claim (a), Complainant termination, was effective on August 10, 2020. 2 On appeal, Complainant asserts that she would , at times , borrow a l aptop from a relative. In addition, Complainant’s statement, on appeal, contains copies of email s she sent to Agency officials during her employment informing them that her laptop had crashed and she had no phone. 3 The record does not reflect that the A gency sent Complainant a Notice of Right to File a Formal Complaint (Notice) prior to its June 30, 2021 Notice. The Agency sh ould have sent Complainant a Notice thirty days after her September 1, 2020 EEO contact, regardless of whether Complainant submitt ed the Intake form, and informed her that she could file a formal EEO complaint or the matter would be closed. However, the record is devoid of evidence that the Agency took this action. Therefore, Complainant timely initiated EEO contact o n September 1, 2020 with respect to claim (a). Regarding claim (b), Complainant alleges that she was denied a reasonable accommodation from June 10, 2020 until her termination on August 10, 2020. The EEOC Compliance Manual, Section 2 “Threshold Issues ,” EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constit utes a violation each time the employee needs it.” Thus, we find Complainant’s September 1, 2020 EEO contact was timely with respect to claim (b), her denial of a reasonable accommodation claim.	Cristen T . Complainan t, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2022002003 Agency No. 06-21-03 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 17, 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., Section 501 of the Reha bilitation 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 ame nded, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue , Complainant worked for the Agency a s a Loan Specialist . On July 13, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, color, disabilit y, age, and in reprisal for prior protected EEO activity . On February 17, 2022, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: a. On August 10, 2020, Complainant was terminated from her position; and b. Between June 10, 2020 and August 10, 2020, she was not provided with a reasonable accommodation for her disability. The Agency reasoned that Complainant did not initiate EEO contact until June 10, 2021, outside of the applicable time limit. The Agency noted that Complainant contacted the EEO Office on several occasions prior to June 10, 2021 (including on September 1, 2020) to file an EEO complaint but did not pursue the complaint until June 10, 2021 when she returned the Agency’s pre-complaint documents. The instant appeal followed. On appeal, Complainant assert s that her EEO contact was timely. Specifically, Compla inant asserts that she initiated EEO contact with an Agency EEO Official on September 1, 2020, but got no res ponse. She assert s further that she subsequently contacted the EEOC who advised her to contact the Agency EEO Official to file an EEO complaint with the Agenc y. She asserts that she followed up with the Agency EE O Official regarding filing a complaint. In addition, Complainant asserts that she had difficulty contacting the Agency because, during her employment with the Agency, her personal computer “crashed” which made access to email difficult, and she did not have a personal phone. 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 da te of the action. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that they were not notified of the time limits and was not otherwise aware of them, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence they were prevented by circumstances b eyond their control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, we conclude the Agency improperly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. T he record reflects that Complainant contacted an Agency EEO Official on September 1, 2020, via email in which she alleged that she had been discriminated against and wanted to file a formal EEO complaint. In addition, on appeal, Complainant asserts that sh e contacted this Commission (EEOC) after not hearing from the Agency EEO Official , and on November 16, 2020, the EEOC informed her to follow up with the Agency EEO Official to file an EEO complaint with the Agency and to document her attempts to make such contact . The record reflects that Complainant followed up with the Agency EEO Official via email on November 17, 2020. The Deputy Administrator (DA) for the Agency’s Office of Diversity, Inclusion, and Civil Rights (ODICR) responded to Complainant via email dated November 17, 2020, and notified Complainant that the Agency EEO Official no longe r worked in that office. DA requested that Complainant complete an Intake Form, which she attached to the email , and return the Intake form to a specified email address for EEO inquiries. On January 11, 2021, Complainant sent an email to the address for EEO inquiries , which DA provided to her, again s tating that she wanted to file a discrimination complaint and asked for “help.” On January 11, 2021, DA responded that she previously sent the Intake form to Complainant on November 17, 2020. On June 9, 2021, DA sent an email to Complainant stating that she was informed that Complainant contacted the Agency’s Conflict Resolution Center and wanted to file an EEO complaint. DA stated that she had previously sent Complainant the forms and that she was now incl uding them for a third time. In response, Complainant, via email dated June 9, 2021 told DA that “it was easy [for the Agency] to blame [her]” and that while working for the Agency her laptop crashe d and she has had difficulty accessing h er email. Compla inant , on appeal, also asserts that , during the time she worked for the Agency, her personal laptop crashed and she had no phone. 2 The record contains a copy of Complainant’s termination letter informing her that her termination would be effective August 10, 2020, and that if she wanted to file an EEO complaint to contact the Agency’s ODICR within 45 days of receipt of the termination letter . We also note that w hile the termination letter provided a phone number to initiate EEO contact, it did not provide a mailing address. The record also reflect s that during this time period ODICR was on a full telework schedule due to the pandemic and that it was sending all EEO correspondence vi a electronic mail. Based on the foregoing circumstances, we find that Com plainant , who had difficulty accessing her email due to her “crashed” lapt op and no phone, initiated EEO contact on September 1, 2020 (rather than on June 10, 2021 as st ated in the Agency’s final decision) with an intent to pursue the EEO process and follo wed up with the Agency’s ODCIR numerous times in a n attempt to pursue a formal complaint .3 Complainant’s September 1, 2020 EEO contact is timely with respect to claims (a)- (b). The record reflects that claim (a), Complainant termination, was effective on August 10, 2020. 2 On appeal, Complainant asserts that she would , at times , borrow a l aptop from a relative. In addition, Complainant’s statement, on appeal, contains copies of email s she sent to Agency officials during her employment informing them that her laptop had crashed and she had no phone. 3 The record does not reflect that the A gency sent Complainant a Notice of Right to File a Formal Complaint (Notice) prior to its June 30, 2021 Notice. The Agency sh ould have sent Complainant a Notice thirty days after her September 1, 2020 EEO contact, regardless of whether Complainant submitt ed the Intake form, and informed her that she could file a formal EEO complaint or the matter would be closed. However, the record is devoid of evidence that the Agency took this action. Therefore, Complainant timely initiated EEO contact o n September 1, 2020 with respect to claim (a). Regarding claim (b), Complainant alleges that she was denied a reasonable accommodation from June 10, 2020 until her termination on August 10, 2020. The EEOC Compliance Manual, Section 2 “Threshold Issues ,” EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constit utes a violation each time the employee needs it.” Thus, we find Complainant’s September 1, 2020 EEO contact was timely with respect to claim (b), her denial of a reasonable accommodation claim. Accordingly, we REVERSE the Agency’s final decision dismiss ing Complainant’s complaint and we REMAND this matter to the Agency for fu rther processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq . The Agency s hall 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgm ent to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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 se ven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) support ing 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 digit al 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 representat ive. 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 & S upp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, in cluding 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 imple ment 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complaina nt 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 appellate decision will have a substant ial 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 reconsider ation elects to file a statement or brief in support of the request, that statement or brief must be filed to gether with the request for reconsideration . A party shall have twenty (20) calendar days from receipt of another party’s request for reconsiderat ion 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 re quest 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 Operati ons, 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 -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 s upporting 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 (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 U nited 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 Agenc y, 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. Fa ilure 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 de partment 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 per mission 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 7, 2022 Date	[ "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.108", "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. § 1614.503(f)", "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. § 79...	[ -0.052541859447956085, 0.09284640103578568, -0.02160748280584812, 0.03414752334356308, -0.03932809457182884, 0.054511576890945435, 0.011837873607873917, -0.015572276897728443, -0.020608646795153618, 0.019568312913179398, 0.05473943427205086, -0.01672643981873989, 0.008651125244796276, -0.0...
71	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985992_r.txt	01985992_r.txt	TXT	text/plain	16,073		July 8, 1998	Appeal Number: 01985992 Complaint Allegations: in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) Background: The record reveals that in a memorandum dated December 2, 1997, the Division of Banking Supervision and Regulation recommended to the Division of Human Resources Management that appellant be promoted to grade FR 22/23 with an appropriate title change and a salary increase of 10%. Appellant initiated contact with an EEO Counselor on January 12, 1998. On January 30, 1998, appellant left a voice message for the EEO Counselor wherein she requested a report of their January 12, 1998 meeting. In an e-mail message dated February 4, 1998, appellant stated to the EEO Counselor that the meeting of January 12, 1998, concerned an EEO matter. Appellant stated that she raised her allegations of discrimination based on her age and sex during that meeting. Appellant stated that the EEO Counselor told her that she would speak to other people and get back to her. Appellant further stated that she called the EEO Counselor on February 2, 1998, and at that time, the EEO Counselor told her she believed that this matter was a work-related grievance rather than an EEO matter. In an e-mail message dated February 5, 1998, the EEO Counselor informed appellant that it was not her recollection that appellant referred to discriminatory acts at the January 12, 1998 meeting. The EEO Counselor noted that appellant did not clearly state allegations of discrimination until February 4, 1998. In an e-mail message dated February 11, 1998, appellant stated to the EEO Counselor that the reason she came to her is because she is an EEO Counselor and she wanted to discuss her discrimination complaint. Appellant maintained that she told the EEO Counselor that she had been discriminated against based upon her age and sex and that her pension rights would be adversely impacted. Appellant stated that although her reclassification was approved in December 1997, by her Division, nothing has been formally approved. Appellant met again with the EEO Counselor on February 12, 1998. On March 17, 1998, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her sex (female) and age (62) when she did not receive a salary and job title reflecting her duties and responsibilities. In its final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant should have had a reasonable suspicion of discrimination in October 1997, when she discovered a job posting for a grade level 22-24 position, with similar responsibilities and duties as she was performing. Further, the agency stated that appellant has been questioning her job classification for the past 8-10 years. The agency noted that appellant stated that this issue was raised during her annual performance reviews, budget time, and mid-year budget reviews. On appeal, appellant contends that the discriminatory event at issue was the failure or refusal of the agency to retroactively recommend her for reclassification, and to not recommend her for promotion to the highest step within grade 23. Appellant notes that fewer than 45 days passed from the December 2, 1997 memorandum to the Division of Human Resources Management until she met with an EEO Counselor on January 12, 1998. Further, appellant maintains that she raised discrimination in that meeting with the EEO Counselor, and that the EEO Counselor only states that it is her recollection that she did not mention discrimination. In response, the agency submits an affidavit from the EEO Counselor, who states that when she explained the categories of discrimination to appellant, appellant did not inform her that she wanted to pursue an EEO complaint and she did not request EEO counseling. The EEO Counselor states that appellant replied that she did not know what she wanted to do. The EEO Counselor notes that she did not provide appellant with the notice of rights because she did not believe appellant was initiating the EEO process. According to the EEO Counselor, she advised appellant that the matter appeared to be a dispute with management that appellant may want to raise with the Employee Relations Office, and that the Employee Relations Office subsequently worked with appellant to resolve her concerns. The agency maintains that the January 13, 1998 meeting did not constitute an initiation of the EEO process. The agency argues that the earliest point that appellant initiated the EEO process was on January 30, 1998, when appellant requested that the EEO Counselor give her a copy of her report. With regard to the nature of the discriminatory event, the agency asserts that in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period.	Jacquelyn P. Keys, ) Appellant, ) ) v. ) Appeal No. 01985992 ) Agency No. 98-03-002 Alan Greenspan, ) Chairman, ) Federal Reserve System, ) 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, 29 U.S.C. §621 et seq. Appellant received the final agency decision on July 8, 1998. The appeal was postmarked July 29, 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 of failure to contact an EEO Counselor in a timely manner. BACKGROUND The record reveals that in a memorandum dated December 2, 1997, the Division of Banking Supervision and Regulation recommended to the Division of Human Resources Management that appellant be promoted to grade FR 22/23 with an appropriate title change and a salary increase of 10%. Appellant initiated contact with an EEO Counselor on January 12, 1998. On January 30, 1998, appellant left a voice message for the EEO Counselor wherein she requested a report of their January 12, 1998 meeting. In an e-mail message dated February 4, 1998, appellant stated to the EEO Counselor that the meeting of January 12, 1998, concerned an EEO matter. Appellant stated that she raised her allegations of discrimination based on her age and sex during that meeting. Appellant stated that the EEO Counselor told her that she would speak to other people and get back to her. Appellant further stated that she called the EEO Counselor on February 2, 1998, and at that time, the EEO Counselor told her she believed that this matter was a work-related grievance rather than an EEO matter. In an e-mail message dated February 5, 1998, the EEO Counselor informed appellant that it was not her recollection that appellant referred to discriminatory acts at the January 12, 1998 meeting. The EEO Counselor noted that appellant did not clearly state allegations of discrimination until February 4, 1998. In an e-mail message dated February 11, 1998, appellant stated to the EEO Counselor that the reason she came to her is because she is an EEO Counselor and she wanted to discuss her discrimination complaint. Appellant maintained that she told the EEO Counselor that she had been discriminated against based upon her age and sex and that her pension rights would be adversely impacted. Appellant stated that although her reclassification was approved in December 1997, by her Division, nothing has been formally approved. Appellant met again with the EEO Counselor on February 12, 1998. On March 17, 1998, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her sex (female) and age (62) when she did not receive a salary and job title reflecting her duties and responsibilities. In its final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant should have had a reasonable suspicion of discrimination in October 1997, when she discovered a job posting for a grade level 22-24 position, with similar responsibilities and duties as she was performing. Further, the agency stated that appellant has been questioning her job classification for the past 8-10 years. The agency noted that appellant stated that this issue was raised during her annual performance reviews, budget time, and mid-year budget reviews. On appeal, appellant contends that the discriminatory event at issue was the failure or refusal of the agency to retroactively recommend her for reclassification, and to not recommend her for promotion to the highest step within grade 23. Appellant notes that fewer than 45 days passed from the December 2, 1997 memorandum to the Division of Human Resources Management until she met with an EEO Counselor on January 12, 1998. Further, appellant maintains that she raised discrimination in that meeting with the EEO Counselor, and that the EEO Counselor only states that it is her recollection that she did not mention discrimination. In response, the agency submits an affidavit from the EEO Counselor, who states that when she explained the categories of discrimination to appellant, appellant did not inform her that she wanted to pursue an EEO complaint and she did not request EEO counseling. The EEO Counselor states that appellant replied that she did not know what she wanted to do. The EEO Counselor notes that she did not provide appellant with the notice of rights because she did not believe appellant was initiating the EEO process. According to the EEO Counselor, she advised appellant that the matter appeared to be a dispute with management that appellant may want to raise with the Employee Relations Office, and that the Employee Relations Office subsequently worked with appellant to resolve her concerns. The agency maintains that the January 13, 1998 meeting did not constitute an initiation of the EEO process. The agency argues that the earliest point that appellant initiated the EEO process was on January 30, 1998, when appellant requested that the EEO Counselor give her a copy of her report. With regard to the nature of the discriminatory event, the agency asserts that in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: August 27, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[]	[ -0.09836620837450027, 0.05710727348923683, -0.05008607357740402, -0.0096259331330657, 0.0418519489467144, 0.05437816306948662, 0.05814788118004799, 0.0636250227689743, -0.02249041572213173, 0.02529517561197281, 0.03885803371667862, -0.011341155506670475, -0.02019987255334854, 0.00456505641...
72	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985992.txt	01985992.txt	TXT	text/plain	15,957		August 27, 1999	Appeal Number: 01985992 Complaint Allegations: in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) Background: The record reveals that in a memorandum dated December 2, 1997, the Division of Banking Supervision and Regulation recommended to the Division of Human Resources Management that appellant be promoted to grade FR 22/23 with an appropriate title change and a salary increase of 10%. Appellant initiated contact with an EEO Counselor on January 12, 1998. On January 30, 1998, appellant left a voice message for the EEO Counselor wherein she requested a report of their January 12, 1998 meeting. In an e-mail message dated February 4, 1998, appellant stated to the EEO Counselor that the meeting of January 12, 1998, concerned an EEO matter. Appellant stated that she raised her allegations of discrimination based on her age and sex during that meeting. Appellant stated that the EEO Counselor told her that she would speak to other people and get back to her. Appellant further stated that she called the EEO Counselor on February 2, 1998, and at that time, the EEO Counselor told her she believed that this matter was a work-related grievance rather than an EEO matter. In an e-mail message dated February 5, 1998, the EEO Counselor informed appellant that it was not her recollection that appellant referred to discriminatory acts at the January 12, 1998 meeting. The EEO Counselor noted that appellant did not clearly state allegations of discrimination until February 4, 1998. In an e-mail message dated February 11, 1998, appellant stated to the EEO Counselor that the reason she came to her is because she is an EEO Counselor and she wanted to discuss her discrimination complaint. Appellant maintained that she told the EEO Counselor that she had been discriminated against based upon her age and sex and that her pension rights would be adversely impacted. Appellant stated that although her reclassification was approved in December 1997, by her Division, nothing has been formally approved. Appellant met again with the EEO Counselor on February 12, 1998. On March 17, 1998, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her sex (female) and age (62) when she did not receive a salary and job title reflecting her duties and responsibilities. In its final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant should have had a reasonable suspicion of discrimination in October 1997, when she discovered a job posting for a grade level 22-24 position, with similar responsibilities and duties as she was performing. Further, the agency stated that appellant has been questioning her job classification for the past 8-10 years. The agency noted that appellant stated that this issue was raised during her annual performance reviews, budget time, and mid-year budget reviews. On appeal, appellant contends that the discriminatory event at issue was the failure or refusal of the agency to retroactively recommend her for reclassification, and to not recommend her for promotion to the highest step within grade 23. Appellant notes that fewer than 45 days passed from the December 2, 1997 memorandum to the Division of Human Resources Management until she met with an EEO Counselor on January 12, 1998. Further, appellant maintains that she raised discrimination in that meeting with the EEO Counselor, and that the EEO Counselor only states that it is her recollection that she did not mention discrimination. In response, the agency submits an affidavit from the EEO Counselor, who states that when she explained the categories of discrimination to appellant, appellant did not inform her that she wanted to pursue an EEO complaint and she did not request EEO counseling. The EEO Counselor states that appellant replied that she did not know what she wanted to do. The EEO Counselor notes that she did not provide appellant with the notice of rights because she did not believe appellant was initiating the EEO process. According to the EEO Counselor, she advised appellant that the matter appeared to be a dispute with management that appellant may want to raise with the Employee Relations Office, and that the Employee Relations Office subsequently worked with appellant to resolve her concerns. The agency maintains that the January 13, 1998 meeting did not constitute an initiation of the EEO process. The agency argues that the earliest point that appellant initiated the EEO process was on January 30, 1998, when appellant requested that the EEO Counselor give her a copy of her report. With regard to the nature of the discriminatory event, the agency asserts that in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period.	Jacquelyn P. Keys v. Federal Reserve System 01985992 August 27, 1999 Jacquelyn P. Keys, ) Appellant, ) ) v. ) Appeal No. 01985992 ) Agency No. 98-03-002 Alan Greenspan, ) Chairman, ) Federal Reserve System, ) 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, 29 U.S.C. §621 et seq. Appellant received the final agency decision on July 8, 1998. The appeal was postmarked July 29, 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 of failure to contact an EEO Counselor in a timely manner. BACKGROUND The record reveals that in a memorandum dated December 2, 1997, the Division of Banking Supervision and Regulation recommended to the Division of Human Resources Management that appellant be promoted to grade FR 22/23 with an appropriate title change and a salary increase of 10%. Appellant initiated contact with an EEO Counselor on January 12, 1998. On January 30, 1998, appellant left a voice message for the EEO Counselor wherein she requested a report of their January 12, 1998 meeting. In an e-mail message dated February 4, 1998, appellant stated to the EEO Counselor that the meeting of January 12, 1998, concerned an EEO matter. Appellant stated that she raised her allegations of discrimination based on her age and sex during that meeting. Appellant stated that the EEO Counselor told her that she would speak to other people and get back to her. Appellant further stated that she called the EEO Counselor on February 2, 1998, and at that time, the EEO Counselor told her she believed that this matter was a work-related grievance rather than an EEO matter. In an e-mail message dated February 5, 1998, the EEO Counselor informed appellant that it was not her recollection that appellant referred to discriminatory acts at the January 12, 1998 meeting. The EEO Counselor noted that appellant did not clearly state allegations of discrimination until February 4, 1998. In an e-mail message dated February 11, 1998, appellant stated to the EEO Counselor that the reason she came to her is because she is an EEO Counselor and she wanted to discuss her discrimination complaint. Appellant maintained that she told the EEO Counselor that she had been discriminated against based upon her age and sex and that her pension rights would be adversely impacted. Appellant stated that although her reclassification was approved in December 1997, by her Division, nothing has been formally approved. Appellant met again with the EEO Counselor on February 12, 1998. On March 17, 1998, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the bases of her sex (female) and age (62) when she did not receive a salary and job title reflecting her duties and responsibilities. In its final decision, the agency dismissed the complaint on the grounds that appellant failed to contact an EEO Counselor in a timely manner. The agency determined that appellant should have had a reasonable suspicion of discrimination in October 1997, when she discovered a job posting for a grade level 22-24 position, with similar responsibilities and duties as she was performing. Further, the agency stated that appellant has been questioning her job classification for the past 8-10 years. The agency noted that appellant stated that this issue was raised during her annual performance reviews, budget time, and mid-year budget reviews. On appeal, appellant contends that the discriminatory event at issue was the failure or refusal of the agency to retroactively recommend her for reclassification, and to not recommend her for promotion to the highest step within grade 23. Appellant notes that fewer than 45 days passed from the December 2, 1997 memorandum to the Division of Human Resources Management until she met with an EEO Counselor on January 12, 1998. Further, appellant maintains that she raised discrimination in that meeting with the EEO Counselor, and that the EEO Counselor only states that it is her recollection that she did not mention discrimination. In response, the agency submits an affidavit from the EEO Counselor, who states that when she explained the categories of discrimination to appellant, appellant did not inform her that she wanted to pursue an EEO complaint and she did not request EEO counseling. The EEO Counselor states that appellant replied that she did not know what she wanted to do. The EEO Counselor notes that she did not provide appellant with the notice of rights because she did not believe appellant was initiating the EEO process. According to the EEO Counselor, she advised appellant that the matter appeared to be a dispute with management that appellant may want to raise with the Employee Relations Office, and that the Employee Relations Office subsequently worked with appellant to resolve her concerns. The agency maintains that the January 13, 1998 meeting did not constitute an initiation of the EEO process. The agency argues that the earliest point that appellant initiated the EEO process was on January 30, 1998, when appellant requested that the EEO Counselor give her a copy of her report. With regard to the nature of the discriminatory event, the agency asserts that in her complaint, appellant stated that her allegations were disparity in pay, grade, and benefits for work performed. The agency argues that appellant has raised these issues over a period of 8-10 years. Further, the agency asserts that appellant was aware of the disparity in pay, grade, and benefits for work performed no later than October 1997, when she saw a vacancy announcement for a position that described her job responsibilities. The agency maintains that the memorandum of December 2, 1997, was not referred to by appellant as the date of the discriminatory event during the processing of the 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 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. Upon review of the record, we find that the alleged discriminatory event at issue is the December 2, 1997 letter from the Division of Banking Supervision and Regulation to the Division of Human Resources Management that failed to retroactively reclassify appellant. Appellant's concern about the disparity in her pay, grade, and benefits is a reflection of her belief that she has not been classified properly in terms of her job responsibilities. We further find that appellant initiated contact with an EEO Counselor on January 12, 1998. Although appellant may not have conveyed in a succinct manner to the EEO Counselor her belief that she was being discriminated against, we find that appellant is credible and that in general she presented the issue of her not being retroactively reclassified as a form of disparate treatment. Appellant's contact of an EEO Counselor on January 12, 1998, was within the 45-day limitation period. Accordingly, the agency's decision to dismiss appellant's complaint on the grounds of untimely EEO contact was improper. The complaint is hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1092) The agency is ORDERED to process the remanded complaint in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded complaint 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 acknowledgment 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: August 27, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations	[]	[ -0.09670370072126389, 0.06570063531398773, -0.05033043026924133, -0.012911785393953323, 0.05049354210495949, 0.06667517870664597, 0.06262476742267609, 0.07210124284029007, -0.0002836874045897275, 0.02347756177186966, 0.05495801195502281, -0.007498986553400755, -0.009416424669325352, -0.009...
73	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991576.txt	01991576.txt	TXT	text/plain	39,377		December 17, 1998	Appeal Number: 01991576 Background: As a threshold matter, the Commission notes a lack of clarity in the record, as well as an involved procedural history. We note, for example, that it appears that appellant has filed several complaints against the agency, none of which, apparently, has been resolved. Appellant's complaints also appear to raise both overlapping and continuing allegations of employment discrimination. In a recent decision, the Commission ordered the agency to conduct a supplemental investigation to determine whether certain allegations of appellant's had previously been addressed by or were pending before the agency or the Commission. See Savage v. Department of Housing and Urban Development, EEOC Appeal No. 01986484 (August 12, 1999) (hereinafter Savage I). Because the record is unclear in the present case, we will refer to the allegations in Savage I for background only and set forth the chronology cited below. In Savage I, the Commission noted the agency's framing of appellant's January 12, 1998 formal EEO complaint as alleging that, for prohibited reasons: (1) appellant was denied a non-hostile, non-discriminatory, working environment, e.g., proper office space, allied accommodations, secretarial assignment, duties and responsibilities consistent with appellant's SES classification, elements and standards consistent with the only performed duties and responsibilities, and reassignment to the vacant Deputy Assistant Secretary or similar SES position; and (2) appellant's supervisor denied appellant a bonus or pay raise for the rating period October 1, 1996 to September 30, 1997. In Savage I, we noted the agency's acceptance of appellant's allegation pertaining to his performance appraisal rating. The dispute in the present case centers around two EE0 matters. In the first matter, the agency denied that a document filed by appellant is a formal complaint and has instead deemed it to be a request for EEO counseling. By letter dated January 17, 1997, appellant filed with the agency what he purports to be a formal EEO complaint (hereinafter Complaint 1, or C-1). In C-1, appellant alleged that the agency, through the then-agency head and his subordinates, discriminatorily took the following actions:<1> (1) removed him from his position as Deputy Assistant Secretary;<2> (2) reassigned him to Detroit, Michigan, to a non-functioning position for which he was unqualified; (3) placed him on an IPA when he pleaded with the agency that he needed to be here with his disabled daughter; (4) withdrew him from the IPA and reassigned him to FHEO in Washington, D.C.. as a Senior Advisor to a Deputy Assistant Secretary, a position that lacked SES duties and responsibilities, although a White female, also on an IPA, was permitted to continue her IPA placement; (5) denied him a parking space for two months; (6) denied him an official position description until appellant requested one; (7) denied him an official performance appraisal with appropriate elements and standards; (8) denied him official annual performance ratings with accompanying bonuses and pay raises; (9) denied him an office appropriate for an SES person; and (10) denied him SES duties and responsibilities. In C-1, appellant indicated he had seen a named EEO Counselor (hereinafter NEC) prior to filing C-1.<3> In response to C-1, the Director of the agency's EEO Division (DED), by letter dated February 3, 1997, advised appellant that C-1 would be treated as a request for EEO counseling and advised appellant, inter alia, that NEC was no longer a collateral duty counselor and his purported request to be counseled by NEC would not be honored. In a February 11, 1997 letter, appellant informed DED that he had previously been counseled by NEC but had never received an NOFI and advised of the right to file a formal EEO complaint. Appellant denied seeking NEC as his counselor at this time, and appears to have raised a new allegation that his right to anonymity in the EEO process had been violated because he was required to contact DED's office to request counseling and that DED's office was staffed by some individuals who were not EEO Counselors. Appellant was subsequently provided with EEO counseling and, on February 27, 1997, was issued a notice of the right to file a formal EEO complaint. We note that the record contains an Amended EEO Counselor's report (AECR) citing January 17, 1997 as the date of appellant's initial EEO office contact, and January 21, 1997, as the date of appellant's initial EEO Counselor contact. However, the record does not appear to contain the underlying ECR that preceded the AECR. By letter dated March 1, 1997, appellant filed a complaint (C-2"). In C-2, appellant again named the then-agency head and his subordinates as having discriminated against him in a continuing pattern. In C-2, appellant raised the following allegations that the Commission has renumbered and rephrased for the purposes of consistency and clarity: (1) on January 6, 1997, appellant learned he had been nonselected for his prior position of Deputy Assistant Secretary for Operations and Management, FHEO, in favor of a less-qualified White female; (2) he was denied an official performance appraisal rating and rated Superior for FY 1993; (3) he was denied a raise or bonus despite an Outstanding rating in FY 1994 and 1995; (4) he was rated Superior in FY 1996;<4> (5) he was denied monetary recognition in FY 1996, despite saving the agency over $300,000 in resolving an EEO complaint; (6) he was assigned to the newly-created position of Senior Advisor, but primarily performed duties at only the GS-13 level, or below, with regard to EEO complaints filed by FHEO employees or applicants for FHEO employment; (7) he was assigned neither staff nor office space comparable to other SES FHEO personnel; (8) he has not traveled in more than 3 years, beyond one trip to investigate a sexual harassment complaint; (9) he was denied a budget for such items as travel, staffing, and contracts; (10) he was falsely accused of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and was subjected to retaliation because of it; (11) he was nonselected for the position of Deputy Assistant Secretary for Operations and Management in FHEO; and, although never notified of his nonselection, he became aware of his nonselection on January 6, 1997, when he returned from vacation; (12) subsequent to his removal from his Deputy Assistant Secretary's position in FHEO, he was denied reassignment to other SES positions in the agency, including FHEO, e.g., Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigations; Director of the Departmental EEO Office; Deputy Director of the Human Resources Office; (13) all the aforesaid allegations arose from a 1994 reassignment to the Detroit Office, without consultation, despite his daughter's disability;<5> and (14) he was denied the right to anonymous EEO counseling, when the EEO Office required him to identify himself to obtain an EEO Counselor's name. As part of the relief sought in C-2, appellant requested compensatory damages. By letter dated May 30, 1997, DED requested, inter alia, clarification of appellant's allegations. In her letter, DED denied that the agency had violated appellant's right to anonymity. Regarding appellant's assertion that he had received EEO counseling from NEC, DED stated, in relevant part, that if [NEC] counseled you he did so outside the realm of EEO counseling. Appellant responded by letter dated June 12, 1997, objecting, in pertinent part, to DED's treating his complaint in piecemeal' fashion and maintaining that he was alleging continuing discrimination.' The gravamen of this letter was that the agency had been discriminating against appellant since 1993,<6> when he was removed from his Deputy Assistant Secretary's position and he was not reassigned to a comparable position. By letter dated July 25, 1997, under the letterhead of OFFICE OF THE SECRETARY, and signed by DED, the agency accepted for investigation the following allegations: Appellant was discriminated against because of [his] color (Black), national origin (African American), sex (male), and age (64) when: (1) [he was] not selected for the position of Deputy Assistant Secretary for Operations and Management, Office of Fair Housing and Equal Opportunity. [He] learned on January 6, 1997 that [he] had not been selected for this position; and (2) in reprisal for opposing practices made illegal by Title VII, [he] received a Superior' performance rating for FY 1996 rather than Outstanding'.[<7>] In the July 25, 1997 letter, DED also advised appellant that it was not accepting for investigation the other allegations [he] raised to demonstrate an alleged pattern and practice of discrimination because they were untimely raised with an EEO counselor.<8> The record reflects that appellant subsequently requested a hearing before an EEOC administrative judge (AJ) and consolidation of his complaints. By letter dated November 18, 1998, the agency issued its final decision that is the subject of the present appeal. The FAD addressed only appellant's March 1, 1997 complaint (C-2), identifying appellant's bases of discrimination as follows: race (Black), color (mixed), sex (male), age (64), disability (that of his daughter), and retaliation for participating in the EEO process and opposing a matter discriminatory under Title VII. The FAD noted appellant's claim of continuing discrimination by management officials in the Office of Fair Housing and Equal Opportunity (FHEO), and the Offices of the Secretary and General Counsel. The FAD identified appellant's allegations as involving the following agency actions against him: (1) denied him an official performance appraisal rating and gave him a rating of Superior for FY 1993; (2) denied him a raise or bonus despite an Outstanding rating in FY 1994 and FY 1995; (3) issued him a Superior rating in FY 1996; (4) denied him monetary recognition in FY 1996 despite his having saved the agency more than $300,000 by settling an EEO complaint; (5) assigned him a non-functioning and newly-created Senior Advisor's position, which primarily performed only GS-13 or below duties related to EEO complaints filed by FHEO employees or FHEO applicants for employment; (6) assigned him neither staff nor office space comparable to other SES personnel assigned to FHEO; (7) denied him an opportunity to travel except for one trip to investigate a sexual harassment complaint, and he was retaliated against for that investigation; (8) denied him a budget for such items as travel, staffing, and contracts; (9) falsely accused him of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and, as a result, retaliated against him; (10) did not select him for the position of Deputy Assistant Secretary for Operations and Management in FHEO and never notified him of his nonselection; on January 6, 1997, he learned another individual was selected; (11) denied him reassignment to other positions in FHEO and the agency, such as: Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigation; Director of the agency's EEO Office; Deputy Director of the Human Resources Office; and other SES positions filled in the agency since his removal from his FHEO Deputy Assistant Secretary's job; (12) reassigned him, in 1994, without consultation, to the Detroit Office, despite his daughter's disability; (13) withdrew his IPA assignment abruptly, in 1995, while allowing two other persons, not of his protected classes, to continue their non-agency assignments; (14) violated his right to anonymity when he was required to identify himself before being assigned an EEO Counselor; and (15) retaliated against him when the agency opposed settlement of a sexual harassment complaint he had investigated. The FAD dismissed allegations (1), (2), (4) through (9), and (11) through (13) for untimely EEO Counselor contact, i.e., beyond the applicable time period of 45 days as set forth at 29 C.F.R. §1614.105(a)(1). The FAD also determined that appellant's allegations did not constitute a continuing violation. In addition, the FAD dismissed allegation (14) for failure to state a claim, as well as, apparently, allegation (15). With regard to appellant's expressed dissatisfaction with the agency's processing of his complaint, the agency referred appellant to a named individual with responsibility for the quality of the processing of EEO complaints, i.e., the Acting Deputy Director of Equal Employment Opportunity (ADEO), in accordance with the Commission's Management Directive for 29 C.F.R. Part 1614. We note that the ADEO was, in fact, DED, although the FAD was signed by a named individual who identified himself by the title of ADEO. We also note that the FAD rejected appellant's assertion that he had filed an EEO complaint on January 17, 1997, which the FAD maintained was a request for EEO counseling. The FAD appears to have indicated that appellant's March 1, 1997 complaint was assigned agency case number EO 97 01, although the FAD itself referenced agency case number EO 97 01 A. Finally, we note the FAD's reference to appellant's request for a hearing before an EEOC AJ. Specifically, we note that, on November 17, 1998, DED, on behalf of the agency, requested the EEOC AJ to stay the proceedings as to cases EO 97 01 and EO 98 02, under EEOC hearing numbers 100-97-7945X and 100-98-8044X, pending the Commission's decisions on both appeals, which we infer to be Savage I and Savage II. In a November 23, 1998 letter to DED, the EEOC AJ stayed the proceedings pending the outcome of appellant's appeals under EEOC hearing numbers 100-97-7945X, 310-98-5198X; agency case number EO- 97-01; EEOC hearing number 100-98-8044X; agency case number EO-98-02. The EEOC AJ also advised the agency's EEO Division to review its responsibility to process complaints in a timely manner and process dismissals expeditiously,' in accordance with the Commission's regulations and Management Directive for those regulations.<9> This appeal followed. CONTENTIONS ON APPEAL On appeal, appellant argues that he became aware of facts related to his removal from his position as Deputy Assistant Secretary for Operations and Management [in FHEO] in late May or early June, 1995, from [a named White male]. Appellant also avers that he initiated EEO counseling in January 1997, when he learned of alleged racially disparate treatment in connection with his reassignment to Detroit, notwithstanding the purported disability of his daughter, but was not provided with a NOFI. Appellant also argues, inter alia, that the FAD dismissed allegations in C-2, which were allegations contained in C-1 and included in C-2 by appellant as background. In addition, appellant argues that his allegations, which are also directed against the agency's EEO Office, as well as the agency's Office of General Counsel, set forth a pattern and practice of discrimination against him.<10> The agency filed no response to appellant's appeal. Legal Analysis: The Commission accepts appellant's appeal pursuant to EEOC Order No. 960, as amended, and, for the reasons set forth below, sets aside the FAD. BACKGROUND As a threshold matter, the Commission notes a lack of clarity in the record, as well as an involved procedural history. We note, for example, that it appears that appellant has filed several complaints against the agency, none of which, apparently, has been resolved. Appellant's complaints also appear to raise both overlapping and continuing allegations of employment discrimination. In a recent decision, the Commission ordered the agency to conduct a supplemental investigation to determine whether certain allegations of appellant's had previously been addressed by or were pending before the agency or the Commission. See Savage v. Department of Housing and Urban Development, EEOC Appeal No. 01986484 (August 12, 1999) (hereinafter Savage I). Because the record is unclear in the present case, we will refer to the allegations in Savage I for background only and set forth the chronology cited below. In Savage I, the Commission noted the agency's framing of appellant's January 12, 1998 formal EEO complaint as alleging that, for prohibited reasons: (1) appellant was denied a non-hostile, non-discriminatory, working environment, e.g., proper office space, allied accommodations, secretarial assignment, duties and responsibilities consistent with appellant's SES classification, elements and standards consistent with the only performed duties and responsibilities, and reassignment to the vacant Deputy Assistant Secretary or similar SES position; and (2) appellant's supervisor denied appellant a bonus or pay raise for the rating period October 1, 1996 to September 30, 1997. In Savage I, we noted the agency's acceptance of appellant's allegation pertaining to his performance appraisal rating. The dispute in the present case centers around two EE0 matters. In the first matter, the agency denied that a document filed by appellant is a formal complaint and has instead deemed it to be a request for EEO counseling. By letter dated January 17, 1997, appellant filed with the agency what he purports to be a formal EEO complaint (hereinafter Complaint 1, or C-1). In C-1, appellant alleged that the agency, through the then-agency head and his subordinates, discriminatorily took the following actions:<1> (1) removed him from his position as Deputy Assistant Secretary;<2> (2) reassigned him to Detroit, Michigan, to a non-functioning position for which he was unqualified; (3) placed him on an IPA when he pleaded with the agency that he needed to be here with his disabled daughter; (4) withdrew him from the IPA and reassigned him to FHEO in Washington, D.C.. as a Senior Advisor to a Deputy Assistant Secretary, a position that lacked SES duties and responsibilities, although a White female, also on an IPA, was permitted to continue her IPA placement; (5) denied him a parking space for two months; (6) denied him an official position description until appellant requested one; (7) denied him an official performance appraisal with appropriate elements and standards; (8) denied him official annual performance ratings with accompanying bonuses and pay raises; (9) denied him an office appropriate for an SES person; and (10) denied him SES duties and responsibilities. In C-1, appellant indicated he had seen a named EEO Counselor (hereinafter NEC) prior to filing C-1.<3> In response to C-1, the Director of the agency's EEO Division (DED), by letter dated February 3, 1997, advised appellant that C-1 would be treated as a request for EEO counseling and advised appellant, inter alia, that NEC was no longer a collateral duty counselor and his purported request to be counseled by NEC would not be honored. In a February 11, 1997 letter, appellant informed DED that he had previously been counseled by NEC but had never received an NOFI and advised of the right to file a formal EEO complaint. Appellant denied seeking NEC as his counselor at this time, and appears to have raised a new allegation that his right to anonymity in the EEO process had been violated because he was required to contact DED's office to request counseling and that DED's office was staffed by some individuals who were not EEO Counselors. Appellant was subsequently provided with EEO counseling and, on February 27, 1997, was issued a notice of the right to file a formal EEO complaint. We note that the record contains an Amended EEO Counselor's report (AECR) citing January 17, 1997 as the date of appellant's initial EEO office contact, and January 21, 1997, as the date of appellant's initial EEO Counselor contact. However, the record does not appear to contain the underlying ECR that preceded the AECR. By letter dated March 1, 1997, appellant filed a complaint (C-2"). In C-2, appellant again named the then-agency head and his subordinates as having discriminated against him in a continuing pattern. In C-2, appellant raised the following allegations that the Commission has renumbered and rephrased for the purposes of consistency and clarity: (1) on January 6, 1997, appellant learned he had been nonselected for his prior position of Deputy Assistant Secretary for Operations and Management, FHEO, in favor of a less-qualified White female; (2) he was denied an official performance appraisal rating and rated Superior for FY 1993; (3) he was denied a raise or bonus despite an Outstanding rating in FY 1994 and 1995; (4) he was rated Superior in FY 1996;<4> (5) he was denied monetary recognition in FY 1996, despite saving the agency over $300,000 in resolving an EEO complaint; (6) he was assigned to the newly-created position of Senior Advisor, but primarily performed duties at only the GS-13 level, or below, with regard to EEO complaints filed by FHEO employees or applicants for FHEO employment; (7) he was assigned neither staff nor office space comparable to other SES FHEO personnel; (8) he has not traveled in more than 3 years, beyond one trip to investigate a sexual harassment complaint; (9) he was denied a budget for such items as travel, staffing, and contracts; (10) he was falsely accused of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and was subjected to retaliation because of it; (11) he was nonselected for the position of Deputy Assistant Secretary for Operations and Management in FHEO; and, although never notified of his nonselection, he became aware of his nonselection on January 6, 1997, when he returned from vacation; (12) subsequent to his removal from his Deputy Assistant Secretary's position in FHEO, he was denied reassignment to other SES positions in the agency, including FHEO, e.g., Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigations; Director of the Departmental EEO Office; Deputy Director of the Human Resources Office; (13) all the aforesaid allegations arose from a 1994 reassignment to the Detroit Office, without consultation, despite his daughter's disability;<5> and (14) he was denied the right to anonymous EEO counseling, when the EEO Office required him to identify himself to obtain an EEO Counselor's name. As part of the relief sought in C-2, appellant requested compensatory damages. By letter dated May 30, 1997, DED requested, inter alia, clarification of appellant's allegations. In her letter, DED denied that the agency had violated appellant's right to anonymity. Regarding appellant's assertion that he had received EEO counseling from NEC, DED stated, in relevant part, that if [NEC] counseled you he did so outside the realm of EEO counseling. Appellant responded by letter dated June 12, 1997, objecting, in pertinent part, to DED's treating his complaint in piecemeal' fashion and maintaining that he was alleging continuing discrimination.' The gravamen of this letter was that the agency had been discriminating against appellant since 1993,<6> when he was removed from his Deputy Assistant Secretary's position and he was not reassigned to a comparable position. By letter dated July 25, 1997, under the letterhead of OFFICE OF THE SECRETARY, and signed by DED, the agency accepted for investigation the following allegations: Appellant was discriminated against because of [his] color (Black), national origin (African American), sex (male), and age (64) when: (1) [he was] not selected for the position of Deputy Assistant Secretary for Operations and Management, Office of Fair Housing and Equal Opportunity. [He] learned on January 6, 1997 that [he] had not been selected for this position; and (2) in reprisal for opposing practices made illegal by Title VII, [he] received a Superior' performance rating for FY 1996 rather than Outstanding'.[<7>] In the July 25, 1997 letter, DED also advised appellant that it was not accepting for investigation the other allegations [he] raised to demonstrate an alleged pattern and practice of discrimination because they were untimely raised with an EEO counselor.<8> The record reflects that appellant subsequently requested a hearing before an EEOC administrative judge (AJ) and consolidation of his complaints. By letter dated November 18, 1998, the agency issued its final decision that is the subject of the present appeal. The FAD addressed only appellant's March 1, 1997 complaint (C-2), identifying appellant's bases of discrimination as follows: race (Black), color (mixed), sex (male), age (64), disability (that of his daughter), and retaliation for participating in the EEO process and opposing a matter discriminatory under Title VII. The FAD noted appellant's claim of continuing discrimination by management officials in the Office of Fair Housing and Equal Opportunity (FHEO), and the Offices of the Secretary and General Counsel. The FAD identified appellant's allegations as involving the following agency actions against him: (1) denied him an official performance appraisal rating and gave him a rating of Superior for FY 1993; (2) denied him a raise or bonus despite an Outstanding rating in FY 1994 and FY 1995; (3) issued him a Superior rating in FY 1996; (4) denied him monetary recognition in FY 1996 despite his having saved the agency more than $300,000 by settling an EEO complaint; (5) assigned him a non-functioning and newly-created Senior Advisor's position, which primarily performed only GS-13 or below duties related to EEO complaints filed by FHEO employees or FHEO applicants for employment; (6) assigned him neither staff nor office space comparable to other SES personnel assigned to FHEO; (7) denied him an opportunity to travel except for one trip to investigate a sexual harassment complaint, and he was retaliated against for that investigation; (8) denied him a budget for such items as travel, staffing, and contracts; (9) falsely accused him of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and, as a result, retaliated against him; (10) did not select him for the position of Deputy Assistant Secretary for Operations and Management in FHEO and never notified him of his nonselection; on January 6, 1997, he learned another individual was selected; (11) denied him reassignment to other positions in FHEO and the agency, such as: Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigation; Director of the agency's EEO Office; Deputy Director of the Human Resources Office; and other SES positions filled in the agency since his removal from his FHEO Deputy Assistant Secretary's job; (12) reassigned him, in 1994, without consultation, to the Detroit Office, despite his daughter's disability; (13) withdrew his IPA assignment abruptly, in 1995, while allowing two other persons, not of his protected classes, to continue their non-agency assignments; (14) violated his right to anonymity when he was required to identify himself before being assigned an EEO Counselor; and (15) retaliated against him when the agency opposed settlement of a sexual harassment complaint he had investigated. The FAD dismissed allegations (1), (2), (4) through (9), and (11) through (13) for untimely EEO Counselor contact, i.e., beyond the applicable time period of 45 days as set forth at 29 C.F.R. §1614.105(a)(1). The FAD also determined that appellant's allegations did not constitute a continuing violation. In addition, the FAD dismissed allegation (14) for failure to state a claim, as well as, apparently, allegation (15). With regard to appellant's expressed dissatisfaction with the agency's processing of his complaint, the agency referred appellant to a named individual with responsibility for the quality of the processing of EEO complaints, i.e., the Acting Deputy Director of Equal Employment Opportunity (ADEO), in accordance with the Commission's Management Directive for 29 C.F.R. Part 1614. We note that the ADEO was, in fact, DED, although the FAD was signed by a named individual who identified himself by the title of ADEO. We also note that the FAD rejected appellant's assertion that he had filed an EEO complaint on January 17, 1997, which the FAD maintained was a request for EEO counseling. The FAD appears to have indicated that appellant's March 1, 1997 complaint was assigned agency case number EO 97 01, although the FAD itself referenced agency case number EO 97 01 A. Finally, we note the FAD's reference to appellant's request for a hearing before an EEOC AJ. Specifically, we note that, on November 17, 1998, DED, on behalf of the agency, requested the EEOC AJ to stay the proceedings as to cases EO 97 01 and EO 98 02, under EEOC hearing numbers 100-97-7945X and 100-98-8044X, pending the Commission's decisions on both appeals, which we infer to be Savage I and Savage II. In a November 23, 1998 letter to DED, the EEOC AJ stayed the proceedings pending the outcome of appellant's appeals under EEOC hearing numbers 100-97-7945X, 310-98-5198X; agency case number EO- 97-01; EEOC hearing number 100-98-8044X; agency case number EO-98-02. The EEOC AJ also advised the agency's EEO Division to review its responsibility to process complaints in a timely manner and process dismissals expeditiously,' in accordance with the Commission's regulations and Management Directive for those regulations.<9> This appeal followed. CONTENTIONS ON APPEAL On appeal, appellant argues that he became aware of facts related to his removal from his position as Deputy Assistant Secretary for Operations and Management [in FHEO] in late May or early June, 1995, from [a named White male]. Appellant also avers that he initiated EEO counseling in January 1997, when he learned of alleged racially disparate treatment in connection with his reassignment to Detroit, notwithstanding the purported disability of his daughter, but was not provided with a NOFI. Appellant also argues, inter alia, that the FAD dismissed allegations in C-2, which were allegations contained in C-1 and included in C-2 by appellant as background. In addition, appellant argues that his allegations, which are also directed against the agency's EEO Office, as well as the agency's Office of General Counsel, set forth a pattern and practice of discrimination against him.<10> The agency filed no response to appellant's appeal. ANALYSIS AND FINDINGS The Commission finds that the agency has not adequately defined appellant's complaint, nor has provided an adequate record in this matter. See Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993); Henry v. U.S. Postal Service, EEOC Request No. 05940897 (April 18, 1995); Guy v. Department of Energy, EEOC Request No. 05930703 (January 14, 1994). Specifically, the file contained an amended EEO Counselor's report without an underlying EEO report. In addition, the complaint file's transmittal letter, signed by DED, made reference to a list of transmitted documents, and an EEO Counselor's report without indicating that the report had been amended. In addition, the transmittal letter references the present case as EO 97 01 A while indicating that the Commission has accepted on appeal, [a[ppellant's allegation that the [agency] failed to accept for investigation all the issues raised in his EEO complaint, case number EO 97 01. The appeal case number is 100-97-945X [sic]. However, as we have stated above, the Commission vacated a prior FAD, in Savage I, supra, for an inadequate record under agency case number EO 98 02A. Further, DED's May 30, 1997 letter, which we cite above, to appellant, references the instant case as EO 97 01. Further, as the EEOC AJ noted, the FAD disposed of C-1 without expressly dismissing it. We find the record inadequate as to whether appellant's purported contact with NEC prior to appellant's filing C-1 constituted EEO contact, in accordance with 29 C.F.R. §1614.105(a). We note that NEC's purported affidavit is silent regarding what specific issues appellant raised with NEC. Additionally, we find that, in C-1, appellant raised the issue of his removal from the position of Deputy Assistant Secretary. The record is not clear whether that position is in the nature of a political appointment and whether appellant's subsequent assignment to a Senior Advisor's position is tantamount to a downgrade that falls within the jurisdiction of the Merit Systems Protection Board (MSPB), as part of a mixed case complaint or mixed case appeal. See 29 C.F.R. §1614.302. We further find that the overlapping nature of appellant's complaints and allegations of ongoing discrimination, as well as an inadequate record, including but not limited to a lack of dates concerning a number of appellant's nonselections, hampers the Commission's disposition of appellant's appeal. The record is unclear, for example, as to which issues are presented as live allegations and which issues are presented as background evidence in support of live allegations. In addition, the Commission finds some of appellant's allegations to be vague. It is not clear, for example, whether appellant is alleging associational disability discrimination<11> with regard to his daughter's unspecified disability and appellant's purported reassignment, or discrimination based on race, or both. In addition, appellant's allusion to the withdrawal of his IPA assignment is also ambiguous. Equally unclear is appellant's allegation concerning the agency's purported retaliation against him for his alleged investigation of a sexual harassment complaint. Therefore, the Commission finds the agency has not met its burden of presenting sufficient evidence for a timeliness determination. See Guy v. Department of Energy, supra. Final Decision: Accordingly, at this time, the Commission will not render a decision as to whether appellant's allegations constitute a continuing violation. Moreover, the inadequacy of the record in the present case also precludes the Commission from reaching a determination as to whether appellant's allegations, viewed in their totality, constitute a claim of harassment and whether the agency has improperly fragmented that claim in piecemeal fashion. See Drake v. Department of the Air Force, EEOC Request No. 05970689 (March 29, 1999); Tilden v. Department of the Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994). Cf. the Commission's Guidance on Investigating, Analyzing Retaliation Claims, Compliance Manual Section 8, Directives Transmittal No. 915.003 (May 20, 1998). Finally, the Commission notes the appearance of a conflict of interest in the processing of appellant's complaint in this matter. The Commission's Management Directive for 29 C.F.R. Part 1614, EEO MD-110 (October 22, 1992) clearly cautions agencies that they must avoid even the appearance of a conflict of interest in their EEO counseling and representational functions, as well as to the need to maintain neutrality in the EEO component. See, e.g., EEO MD-110, Ch. 1, §IV (EEO personnel cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints). For all the foregoing reasons, therefore, the Commission has decided that the FAD in this matter must be vacated.	Phillip H. Savage, ) Appellant, ) ) v. ) Appeal No. 01991576 ) Agency No. EO 97 01 A Andrew M. Cuomo, ) Secretary, ) Department of Housing and ) Urban Development, ) Agency. ) ______________________________) DECISION On December 17, 1998, appellant filed a timely appeal from the agency's November 18, 1998 final decision (FAD), which partially dismissed appellant's March 1, 1997 formal EEO complaint for failure to state a claim and untimely EEO Counselor contact, pursuant, respectively, to 29 C.F.R. §§1614.107(a) and .107(b), in pertinent parts. The Commission accepts appellant's appeal pursuant to EEOC Order No. 960, as amended, and, for the reasons set forth below, sets aside the FAD. BACKGROUND As a threshold matter, the Commission notes a lack of clarity in the record, as well as an involved procedural history. We note, for example, that it appears that appellant has filed several complaints against the agency, none of which, apparently, has been resolved. Appellant's complaints also appear to raise both overlapping and continuing allegations of employment discrimination. In a recent decision, the Commission ordered the agency to conduct a supplemental investigation to determine whether certain allegations of appellant's had previously been addressed by or were pending before the agency or the Commission. See Savage v. Department of Housing and Urban Development, EEOC Appeal No. 01986484 (August 12, 1999) (hereinafter Savage I). Because the record is unclear in the present case, we will refer to the allegations in Savage I for background only and set forth the chronology cited below. In Savage I, the Commission noted the agency's framing of appellant's January 12, 1998 formal EEO complaint as alleging that, for prohibited reasons: (1) appellant was denied a non-hostile, non-discriminatory, working environment, e.g., proper office space, allied accommodations, secretarial assignment, duties and responsibilities consistent with appellant's SES classification, elements and standards consistent with the only performed duties and responsibilities, and reassignment to the vacant Deputy Assistant Secretary or similar SES position; and (2) appellant's supervisor denied appellant a bonus or pay raise for the rating period October 1, 1996 to September 30, 1997. In Savage I, we noted the agency's acceptance of appellant's allegation pertaining to his performance appraisal rating. The dispute in the present case centers around two EE0 matters. In the first matter, the agency denied that a document filed by appellant is a formal complaint and has instead deemed it to be a request for EEO counseling. By letter dated January 17, 1997, appellant filed with the agency what he purports to be a formal EEO complaint (hereinafter Complaint 1, or C-1). In C-1, appellant alleged that the agency, through the then-agency head and his subordinates, discriminatorily took the following actions:<1> (1) removed him from his position as Deputy Assistant Secretary;<2> (2) reassigned him to Detroit, Michigan, to a non-functioning position for which he was unqualified; (3) placed him on an IPA when he pleaded with the agency that he needed to be here with his disabled daughter; (4) withdrew him from the IPA and reassigned him to FHEO in Washington, D.C.. as a Senior Advisor to a Deputy Assistant Secretary, a position that lacked SES duties and responsibilities, although a White female, also on an IPA, was permitted to continue her IPA placement; (5) denied him a parking space for two months; (6) denied him an official position description until appellant requested one; (7) denied him an official performance appraisal with appropriate elements and standards; (8) denied him official annual performance ratings with accompanying bonuses and pay raises; (9) denied him an office appropriate for an SES person; and (10) denied him SES duties and responsibilities. In C-1, appellant indicated he had seen a named EEO Counselor (hereinafter NEC) prior to filing C-1.<3> In response to C-1, the Director of the agency's EEO Division (DED), by letter dated February 3, 1997, advised appellant that C-1 would be treated as a request for EEO counseling and advised appellant, inter alia, that NEC was no longer a collateral duty counselor and his purported request to be counseled by NEC would not be honored. In a February 11, 1997 letter, appellant informed DED that he had previously been counseled by NEC but had never received an NOFI and advised of the right to file a formal EEO complaint. Appellant denied seeking NEC as his counselor at this time, and appears to have raised a new allegation that his right to anonymity in the EEO process had been violated because he was required to contact DED's office to request counseling and that DED's office was staffed by some individuals who were not EEO Counselors. Appellant was subsequently provided with EEO counseling and, on February 27, 1997, was issued a notice of the right to file a formal EEO complaint. We note that the record contains an Amended EEO Counselor's report (AECR) citing January 17, 1997 as the date of appellant's initial EEO office contact, and January 21, 1997, as the date of appellant's initial EEO Counselor contact. However, the record does not appear to contain the underlying ECR that preceded the AECR. By letter dated March 1, 1997, appellant filed a complaint (C-2"). In C-2, appellant again named the then-agency head and his subordinates as having discriminated against him in a continuing pattern. In C-2, appellant raised the following allegations that the Commission has renumbered and rephrased for the purposes of consistency and clarity: (1) on January 6, 1997, appellant learned he had been nonselected for his prior position of Deputy Assistant Secretary for Operations and Management, FHEO, in favor of a less-qualified White female; (2) he was denied an official performance appraisal rating and rated Superior for FY 1993; (3) he was denied a raise or bonus despite an Outstanding rating in FY 1994 and 1995; (4) he was rated Superior in FY 1996;<4> (5) he was denied monetary recognition in FY 1996, despite saving the agency over $300,000 in resolving an EEO complaint; (6) he was assigned to the newly-created position of Senior Advisor, but primarily performed duties at only the GS-13 level, or below, with regard to EEO complaints filed by FHEO employees or applicants for FHEO employment; (7) he was assigned neither staff nor office space comparable to other SES FHEO personnel; (8) he has not traveled in more than 3 years, beyond one trip to investigate a sexual harassment complaint; (9) he was denied a budget for such items as travel, staffing, and contracts; (10) he was falsely accused of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and was subjected to retaliation because of it; (11) he was nonselected for the position of Deputy Assistant Secretary for Operations and Management in FHEO; and, although never notified of his nonselection, he became aware of his nonselection on January 6, 1997, when he returned from vacation; (12) subsequent to his removal from his Deputy Assistant Secretary's position in FHEO, he was denied reassignment to other SES positions in the agency, including FHEO, e.g., Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigations; Director of the Departmental EEO Office; Deputy Director of the Human Resources Office; (13) all the aforesaid allegations arose from a 1994 reassignment to the Detroit Office, without consultation, despite his daughter's disability;<5> and (14) he was denied the right to anonymous EEO counseling, when the EEO Office required him to identify himself to obtain an EEO Counselor's name. As part of the relief sought in C-2, appellant requested compensatory damages. By letter dated May 30, 1997, DED requested, inter alia, clarification of appellant's allegations. In her letter, DED denied that the agency had violated appellant's right to anonymity. Regarding appellant's assertion that he had received EEO counseling from NEC, DED stated, in relevant part, that if [NEC] counseled you he did so outside the realm of EEO counseling. Appellant responded by letter dated June 12, 1997, objecting, in pertinent part, to DED's treating his complaint in piecemeal' fashion and maintaining that he was alleging continuing discrimination.' The gravamen of this letter was that the agency had been discriminating against appellant since 1993,<6> when he was removed from his Deputy Assistant Secretary's position and he was not reassigned to a comparable position. By letter dated July 25, 1997, under the letterhead of OFFICE OF THE SECRETARY, and signed by DED, the agency accepted for investigation the following allegations: Appellant was discriminated against because of [his] color (Black), national origin (African American), sex (male), and age (64) when: (1) [he was] not selected for the position of Deputy Assistant Secretary for Operations and Management, Office of Fair Housing and Equal Opportunity. [He] learned on January 6, 1997 that [he] had not been selected for this position; and (2) in reprisal for opposing practices made illegal by Title VII, [he] received a Superior' performance rating for FY 1996 rather than Outstanding'.[<7>] In the July 25, 1997 letter, DED also advised appellant that it was not accepting for investigation the other allegations [he] raised to demonstrate an alleged pattern and practice of discrimination because they were untimely raised with an EEO counselor.<8> The record reflects that appellant subsequently requested a hearing before an EEOC administrative judge (AJ) and consolidation of his complaints. By letter dated November 18, 1998, the agency issued its final decision that is the subject of the present appeal. The FAD addressed only appellant's March 1, 1997 complaint (C-2), identifying appellant's bases of discrimination as follows: race (Black), color (mixed), sex (male), age (64), disability (that of his daughter), and retaliation for participating in the EEO process and opposing a matter discriminatory under Title VII. The FAD noted appellant's claim of continuing discrimination by management officials in the Office of Fair Housing and Equal Opportunity (FHEO), and the Offices of the Secretary and General Counsel. The FAD identified appellant's allegations as involving the following agency actions against him: (1) denied him an official performance appraisal rating and gave him a rating of Superior for FY 1993; (2) denied him a raise or bonus despite an Outstanding rating in FY 1994 and FY 1995; (3) issued him a Superior rating in FY 1996; (4) denied him monetary recognition in FY 1996 despite his having saved the agency more than $300,000 by settling an EEO complaint; (5) assigned him a non-functioning and newly-created Senior Advisor's position, which primarily performed only GS-13 or below duties related to EEO complaints filed by FHEO employees or FHEO applicants for employment; (6) assigned him neither staff nor office space comparable to other SES personnel assigned to FHEO; (7) denied him an opportunity to travel except for one trip to investigate a sexual harassment complaint, and he was retaliated against for that investigation; (8) denied him a budget for such items as travel, staffing, and contracts; (9) falsely accused him of sending a report to the EEO Office related to his investigation of a sexual harassment complaint and, as a result, retaliated against him; (10) did not select him for the position of Deputy Assistant Secretary for Operations and Management in FHEO and never notified him of his nonselection; on January 6, 1997, he learned another individual was selected; (11) denied him reassignment to other positions in FHEO and the agency, such as: Deputy Assistant Secretary for Policy and Initiatives; Deputy Assistant Secretary for Enforcement and Investigation; Director of the agency's EEO Office; Deputy Director of the Human Resources Office; and other SES positions filled in the agency since his removal from his FHEO Deputy Assistant Secretary's job; (12) reassigned him, in 1994, without consultation, to the Detroit Office, despite his daughter's disability; (13) withdrew his IPA assignment abruptly, in 1995, while allowing two other persons, not of his protected classes, to continue their non-agency assignments; (14) violated his right to anonymity when he was required to identify himself before being assigned an EEO Counselor; and (15) retaliated against him when the agency opposed settlement of a sexual harassment complaint he had investigated. The FAD dismissed allegations (1), (2), (4) through (9), and (11) through (13) for untimely EEO Counselor contact, i.e., beyond the applicable time period of 45 days as set forth at 29 C.F.R. §1614.105(a)(1). The FAD also determined that appellant's allegations did not constitute a continuing violation. In addition, the FAD dismissed allegation (14) for failure to state a claim, as well as, apparently, allegation (15). With regard to appellant's expressed dissatisfaction with the agency's processing of his complaint, the agency referred appellant to a named individual with responsibility for the quality of the processing of EEO complaints, i.e., the Acting Deputy Director of Equal Employment Opportunity (ADEO), in accordance with the Commission's Management Directive for 29 C.F.R. Part 1614. We note that the ADEO was, in fact, DED, although the FAD was signed by a named individual who identified himself by the title of ADEO. We also note that the FAD rejected appellant's assertion that he had filed an EEO complaint on January 17, 1997, which the FAD maintained was a request for EEO counseling. The FAD appears to have indicated that appellant's March 1, 1997 complaint was assigned agency case number EO 97 01, although the FAD itself referenced agency case number EO 97 01 A. Finally, we note the FAD's reference to appellant's request for a hearing before an EEOC AJ. Specifically, we note that, on November 17, 1998, DED, on behalf of the agency, requested the EEOC AJ to stay the proceedings as to cases EO 97 01 and EO 98 02, under EEOC hearing numbers 100-97-7945X and 100-98-8044X, pending the Commission's decisions on both appeals, which we infer to be Savage I and Savage II. In a November 23, 1998 letter to DED, the EEOC AJ stayed the proceedings pending the outcome of appellant's appeals under EEOC hearing numbers 100-97-7945X, 310-98-5198X; agency case number EO- 97-01; EEOC hearing number 100-98-8044X; agency case number EO-98-02. The EEOC AJ also advised the agency's EEO Division to review its responsibility to process complaints in a timely manner and process dismissals expeditiously,' in accordance with the Commission's regulations and Management Directive for those regulations.<9> This appeal followed. CONTENTIONS ON APPEAL On appeal, appellant argues that he became aware of facts related to his removal from his position as Deputy Assistant Secretary for Operations and Management [in FHEO] in late May or early June, 1995, from [a named White male]. Appellant also avers that he initiated EEO counseling in January 1997, when he learned of alleged racially disparate treatment in connection with his reassignment to Detroit, notwithstanding the purported disability of his daughter, but was not provided with a NOFI. Appellant also argues, inter alia, that the FAD dismissed allegations in C-2, which were allegations contained in C-1 and included in C-2 by appellant as background. In addition, appellant argues that his allegations, which are also directed against the agency's EEO Office, as well as the agency's Office of General Counsel, set forth a pattern and practice of discrimination against him.<10> The agency filed no response to appellant's appeal. ANALYSIS AND FINDINGS The Commission finds that the agency has not adequately defined appellant's complaint, nor has provided an adequate record in this matter. See Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993); Henry v. U.S. Postal Service, EEOC Request No. 05940897 (April 18, 1995); Guy v. Department of Energy, EEOC Request No. 05930703 (January 14, 1994). Specifically, the file contained an amended EEO Counselor's report without an underlying EEO report. In addition, the complaint file's transmittal letter, signed by DED, made reference to a list of transmitted documents, and an EEO Counselor's report without indicating that the report had been amended. In addition, the transmittal letter references the present case as EO 97 01 A while indicating that the Commission has accepted on appeal, [a[ppellant's allegation that the [agency] failed to accept for investigation all the issues raised in his EEO complaint, case number EO 97 01. The appeal case number is 100-97-945X [sic]. However, as we have stated above, the Commission vacated a prior FAD, in Savage I, supra, for an inadequate record under agency case number EO 98 02A. Further, DED's May 30, 1997 letter, which we cite above, to appellant, references the instant case as EO 97 01. Further, as the EEOC AJ noted, the FAD disposed of C-1 without expressly dismissing it. We find the record inadequate as to whether appellant's purported contact with NEC prior to appellant's filing C-1 constituted EEO contact, in accordance with 29 C.F.R. §1614.105(a). We note that NEC's purported affidavit is silent regarding what specific issues appellant raised with NEC. Additionally, we find that, in C-1, appellant raised the issue of his removal from the position of Deputy Assistant Secretary. The record is not clear whether that position is in the nature of a political appointment and whether appellant's subsequent assignment to a Senior Advisor's position is tantamount to a downgrade that falls within the jurisdiction of the Merit Systems Protection Board (MSPB), as part of a mixed case complaint or mixed case appeal. See 29 C.F.R. §1614.302. We further find that the overlapping nature of appellant's complaints and allegations of ongoing discrimination, as well as an inadequate record, including but not limited to a lack of dates concerning a number of appellant's nonselections, hampers the Commission's disposition of appellant's appeal. The record is unclear, for example, as to which issues are presented as live allegations and which issues are presented as background evidence in support of live allegations. In addition, the Commission finds some of appellant's allegations to be vague. It is not clear, for example, whether appellant is alleging associational disability discrimination<11> with regard to his daughter's unspecified disability and appellant's purported reassignment, or discrimination based on race, or both. In addition, appellant's allusion to the withdrawal of his IPA assignment is also ambiguous. Equally unclear is appellant's allegation concerning the agency's purported retaliation against him for his alleged investigation of a sexual harassment complaint. Therefore, the Commission finds the agency has not met its burden of presenting sufficient evidence for a timeliness determination. See Guy v. Department of Energy, supra. Accordingly, at this time, the Commission will not render a decision as to whether appellant's allegations constitute a continuing violation. Moreover, the inadequacy of the record in the present case also precludes the Commission from reaching a determination as to whether appellant's allegations, viewed in their totality, constitute a claim of harassment and whether the agency has improperly fragmented that claim in piecemeal fashion. See Drake v. Department of the Air Force, EEOC Request No. 05970689 (March 29, 1999); Tilden v. Department of the Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994). Cf. the Commission's Guidance on Investigating, Analyzing Retaliation Claims, Compliance Manual Section 8, Directives Transmittal No. 915.003 (May 20, 1998). Finally, the Commission notes the appearance of a conflict of interest in the processing of appellant's complaint in this matter. The Commission's Management Directive for 29 C.F.R. Part 1614, EEO MD-110 (October 22, 1992) clearly cautions agencies that they must avoid even the appearance of a conflict of interest in their EEO counseling and representational functions, as well as to the need to maintain neutrality in the EEO component. See, e.g., EEO MD-110, Ch. 1, §IV (EEO personnel cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints). For all the foregoing reasons, therefore, the Commission has decided that the FAD in this matter must be vacated. CONCLUSION Having reviewed the entire record, the arguments on appeal including those arguments not expressly addressed herein,<12> and for the foregoing reasons, the Commission hereby VACATES the FAD, and REMANDS appellant's complaint for further processing consistent with the Commission's decision and applicable regulations. The parties are advised that the Commission's decision is not a decision on the merits of appellant's complaint. The agency shall comply with the Commission's ORDER set forth below. ORDER The agency is ORDERED to ensure the completion of the following actions: 1. The agency shall refer appellant to EEO counseling for a clarification of the allegations in his March 1, 1997 EEO complaint, including but not limited to his allegations concerning the agency's alleged retaliation against him in connection with his purported investigation of a sexual harassment complaint. Appellant may not add new allegations to his March 1, 1997 EEO complaint and shall not be required to refile his March 1, 1997 complaint. 2. The EEO Counselor/Investigator (hereinafter C/I) shall obtain, and appellant shall so provide, the particulars of appellant's allegations which shall include, but not be limited to: relevant dates for all alleged discriminatory actions; identification of all events complained of (e.g., specific nonselections); identification by name and position for each individual who allegedly discriminated against appellant. The Counselor shall also obtain from appellant an explanation as to when and how he first became aware of the specific alleged acts of discrimination (e.g., when he received his performance appraisals and when he first learned of each nonselection). In the event any of appellant's allegations is untimely, the Counselor shall inquire of appellant as to the reason for untimely EEO Counselor contact. All agency abbreviations and terms of art shall be identified and fully explained (e.g., IPA). Appellant and his representative, if any, shall cooperate fully with the C/I's inquiry in this matter. 3. The C/I shall also obtain an explanation from appellant regarding the nature of his daughter's disability and any and all bases of alleged discrimination in connection with his daughter's disability and the alleged discriminatory reassignment. 4. The C/I shall obtain from appellant an explanation regarding what issues he is raising as live allegations, distinguishing those allegations from background allegations appellant has intended to support live allegations in his March 1, 1997 EEO complaint. 5. The C/I shall also gather evidence, with appellant's cooperation where reasonably necessary to effect the Commission's Order in this matter, regarding appellant's January 17, 1997 purported EEO complaint and the precomplaint counseling he purportedly received from NEC. In this regard, the C/I shall obtain statements, under oath or affirmation, from appellant and other agency employees, with first-hand knowledge of the alleged precomplaint counseling, concerning the issues discussed; bases of discrimination alleged; dates the precomplaint counseling purportedly occurred; the qualifications, availability, and authority of NEC to conduct EEO counseling; and any and all information existing at the time of the counseling, informing agency employees of their EEO rights and duties in connection with initiating counseling, and the identities of persons, including NEC, whom agency employees could contact to begin the EEO process. In this regard, the C/I shall obtain statements under oath or affirmation from any and all persons with first-hand knowledge of the manner in which an agency employee could initiate EEO counseling, between the time appellant purportedly spoke with NEC in 1995, up to and including the filing of appellant's March 1, 1997 EEO complaint. 6. In the event appellant is alleging he was improperly removed as a Deputy Assistant Secretary and reassigned to the position of Senior Advisor, the C/I shall inquire into the nature of appellant's original appointment, and subsequent removal, as a Deputy Assistant Secretary, including the names and positions of the individuals who, respectively, appointed him and then removed him. The C/I shall also inquire into whether that removal may be processed as a mixed case complaint or mixed case appeal in accordance with 29 C.F.R. §1614.302, and advise appellant of his right of election accordingly. 7. Subsequent to meeting with appellant and the completion of C/I's investigation, C/I shall issue a supplemental report of investigation to appellant and his representative, if any, pertaining to items (1) through (6) in this Order. The supplemental report shall include all relevant documentation. 8. Appellant and the EEO Counselor shall agree on all the bases and issues in appellant's March 1, 1997 complaint. In the event of such agreement, and in the event the agency accepts all of appellant's allegations for investigation, the agency shall issue to appellant, and his representative if any, a letter of acceptance. 9. If agreement cannot be reached on all the bases and issues in appellant's March 1, 1997 EEO complaint, or if the agency dismisses that complaint in whole or in part, the agency shall issue to appellant and his representative, if any, a new final agency decision with appeal rights to the Commission, defining the bases and issues in appellant's March 1, 1997 EEO complaint. The new final decision shall define all of appellant's appellant's allegations and, with regard to dismissed allegations, shall specify the legal grounds, evidence, and documentation relied on in dismissing those allegations. The new final agency decision shall also conduct an analysis, with regard to allegations dismissed on timeliness or failure to state a claim grounds, of appellant's March 1, 1997 complaint within the context of the continuing violation theory, as well as pattern discrimination. The agency shall not dismiss allegations de facto by omitting those allegations from its new final agency decision. 10. The new final decision shall also address the viability of appellant's purported January 17, 1997 EEO complaint and the allegations contained therein. 11. The new final agency decision shall clarify and distinguish the agency case numbers for all complaints pending before the agency or Commission as referenced in the instant Commission decision. 12. The agency shall consolidate, in accordance with 29 C.F.R. §1614.606, all of appellant's EEO complaints pending before it, unless the agency can demonstrate why it is unable to do so; and shall request assignment of an EEOC AJ, unless appellant requests a final decision without a hearing. 13. The agency shall ensure that all Ordered actions, including appellant's meeting with C/I, the supplemental investigation, report of supplemental investigation, and issuance of the letter of acceptance or new final agency decision, are concluded within ninety (90) calendar days of the date the Commission's decision becomes final. True copies of all Ordered documents, including the report of supplemental investigation, and letter of acceptance or new final agency decision, with any and all supporting documentation, must be submitted 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. §l6l4.604(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: November 5, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations 1In his purported complaint of January 17, 1997, appellant provided no relevant dates of occurrence. 2It appears that appellant is referring to the position of Deputy Assistant Secretary for Operations and Management in the Office of Fair Housing and Equal Opportunity (FHEO). 3We note that, on appeal, appellant provided what purports to be an affidavit from NEC asserting that appellant contacted NEC on June 15, 1995, in NEC's then-capacity as an EEO Counselor. According to NEC, he counseled appellant from June 15, 1995, to August 1996, without providing a Notice of Final Interview (NOFI) to appellant to permit appellant's supervisor at the time to resolve informally appellant's claims. In his affidavit, however, NEC does not identify any of the issues appellant purportedly raised with him. Moreover, the record does not contain an EEO Counselor's report (ECR) by NEC concerning the purported counseling. 4It appears, from a pre-C-2 communication to his EEO Counselor, that appellant was claiming that he should have received a rating of Outstanding. However, we also note appellant's assertion that he was [d]enied a performance rating for FY 1996, and, consequently, was allegedly denied either a bonus or salary increase. 5Appellant also appears to have raised a claim under the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq., alleging that he was discriminated against based on his daughter's disability (unspecified). However, we note that appellant appears to be alleging that he was treated differently from a White employee. As reflected in his appeal and the purported affidavit of the White employee who allegedly had a reassignment rescinded because he was the care giver for his elderly and disabled parents. 6In other EEO correspondence, appellant alleged that the agency initially began discriminating against him when it reassigned him in 1994. 7With regard to the referenced bases of discrimination, with the exception of age and disability, see Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. With regard to the protected class of age, see the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. §621 et seq. 8 Although no appeal rights to the Commission were provided, it appears appellant attempted to appeal the agency's July 25, 1997 letter by correspondence received by the Commission on August 6, 1997, and docketed as EEOC Appeal No. 01976074, under agency case number EO-97-01 (Savage II). That matter is currently pending. 9In this regard, we note that the EEOC AJ attached an Order, to a November 20, 1998 letter to the parties, applying sanctions to the agency, directing the agency to pay for the costs of the court reporter for the deposition of [a named deponent]; the cost of [appellant's] counsel's time preparing for the deposition to the extent that counsel's preparation related to the uninvestigated issues; and half [appellant's] counsel's time for deposing [the named deponent] as to the uninvestigated issues. By way of background, we also note that the EEOC AJ had issued an earlier Order, dated December 8, 1997, under EEOC hearing number 100-97-7945X and agency case number EO-97-01, declaring that the allegations in C-1 and C-2 would be heard and adjudicated because the agency had never expressly dismissed either complaint in whole or in part. 10Appellant also cites an additional complaint of his against the agency under agency case number EO 98 03. That matter, however, is not before us at this time and, consequently, will not be addressed in the Commission's present decision. 11See 29 C.F.R. §1630.8. 12On appeal, appellant referenced numerous Commission decisions. However, he provided no citations for any of them. In the event appellant, on remand, again references decisions of the Commission, he or his representative, as the case may be, shall provide complete citations with dates of issuance. Appellant shall also advise the agency and the Commission if he is, in fact, represented in the present case.	[ "Savage v. Department of Housing and Urban Development, EEOC Appeal No. 01986484 (August 12, 1999)", "Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993)", "Henry v. U.S. Postal Service, EEOC Request No. 05940897 (April 18, 1995)", "Guy v. Department of Energy, EEOC Request No. 05930703 (...	[ -0.057862523943185806, 0.09140055626630783, 0.03554500266909599, -0.04792533814907074, 0.10131879150867462, -0.0220384132117033, 0.05706068500876427, 0.11124163120985031, -0.02037098817527294, 0.06051190197467804, 0.06847073882818222, -0.03020927682518959, -0.06856688112020493, -0.03364430...
74	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082927.txt	0120082927.txt	TXT	text/plain	8,386	Leo Penn, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.	February 25, 2008	Appeal Number: 0120082927 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., 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. On February 25, 2008, complainant contacted the EEO office regarding claims of discrimination based on race (African-American), sex (male), disability, age (58), and reprisal for prior protected EEO activity. Informal efforts to resolve complainant's concerns were unsuccessful. On April 9, 2008, complainant filed a formal EEO complaint. Therein, complainant alleged that he was discriminated against when he was not referred for a Production Controller, GS-1152-11 position vacancy. The record reflects that on November 8, 2007, complainant sent an e-mail to the Civilian Personnel Activity Center (CPAC) inquiring why he did not make the referral list. The record reflects that complainant contacted an EEO Counselor on February 25, 2008. On May 30, 2008, the agency issued a decision dismissing the complaint for untimely EEO Counselor contact. The agency stated that the record shows that while complainant initially contacted CPAC within the 45-day time period (November 8, 2007), he voluntarily chose not to pursue the EEO process at that time. Subsequently, complainant's contact in February 25, 2008, was beyond the 45-day time limitation. On appeal, complainant contends that his EEO Counselor contact was timely, since his November 8, 2007 contact with a CPAC's Labor Relation Specialist constitutes contact with a person logically connected with the EEO process. In pertinent part, the Legal Analysis: EEOC regulation found at 29 C.F.R. § 1614.107(a)(2) allows an agency to dismiss a complaint that fails to comply with the applicable lime 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 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 forty-five (45) days of the effective date of the action. 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. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Upon review of the matter, the Commission finds that the agency properly dismissed complainant's complaint. Complainant was aware that he was not referred to the Production Controller, GS-1152-11 position on November 8, 2007. The record reflects that complainant initiated EEO Counselor contact on February 25, 2008, well beyond forty-five days after he knew of his non referral. Complainant did not contend that the EEO Manager or other EEO personnel were unavailable at any time during the relevant time period. Neither did complainant contend that he did not suspect discrimination during the relevant time period. Moreover, complainant's assertion that the Labor Relations Specialist was someone logically connected with the EEO process supports the Final Decision: Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.	Leo Penn, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. Appeal No. 0120082927 Agency No. ARCCAD08FEB00551 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., 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. On February 25, 2008, complainant contacted the EEO office regarding claims of discrimination based on race (African-American), sex (male), disability, age (58), and reprisal for prior protected EEO activity. Informal efforts to resolve complainant's concerns were unsuccessful. On April 9, 2008, complainant filed a formal EEO complaint. Therein, complainant alleged that he was discriminated against when he was not referred for a Production Controller, GS-1152-11 position vacancy. The record reflects that on November 8, 2007, complainant sent an e-mail to the Civilian Personnel Activity Center (CPAC) inquiring why he did not make the referral list. The record reflects that complainant contacted an EEO Counselor on February 25, 2008. On May 30, 2008, the agency issued a decision dismissing the complaint for untimely EEO Counselor contact. The agency stated that the record shows that while complainant initially contacted CPAC within the 45-day time period (November 8, 2007), he voluntarily chose not to pursue the EEO process at that time. Subsequently, complainant's contact in February 25, 2008, was beyond the 45-day time limitation. On appeal, complainant contends that his EEO Counselor contact was timely, since his November 8, 2007 contact with a CPAC's Labor Relation Specialist constitutes contact with a person logically connected with the EEO process. In pertinent part, the EEOC regulation found at 29 C.F.R. § 1614.107(a)(2) allows an agency to dismiss a complaint that fails to comply with the applicable lime 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 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 forty-five (45) days of the effective date of the action. 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. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). Upon review of the matter, the Commission finds that the agency properly dismissed complainant's complaint. Complainant was aware that he was not referred to the Production Controller, GS-1152-11 position on November 8, 2007. The record reflects that complainant initiated EEO Counselor contact on February 25, 2008, well beyond forty-five days after he knew of his non referral. Complainant did not contend that the EEO Manager or other EEO personnel were unavailable at any time during the relevant time period. Neither did complainant contend that he did not suspect discrimination during the relevant time period. Moreover, complainant's assertion that the Labor Relations Specialist was someone logically connected with the EEO process supports the conclusion that complainant did suspect discrimination at that time. Further, reject complainant's assertion that the Labor Relations Specialist in fact is a person logically connected with the EEO process. Moreover, we note that complainant's allegation that he waited a long period and never received an answer from CPAC, does not toll the time limits for contacting an EEO Counselor. The Commission has consistently held that neither internal appeals, nor informal efforts to challenge an agency's adverse action, nor the filing of a grievance tolls the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). Therefore, we find that complainant initiated untimely EEO Counselor contact for his complaint and failed to present any arguments that would warrant a waiver or extension of the applicable time limits. Accordingly, the agency's final decision dismissing complainant's complaint 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 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), 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 (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 (Z0408) 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 10, 2008 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036	[ "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)", "Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989)", "29 C.F.R. § 1614.107(a)", "29 ...	[ -0.07554836571216583, 0.10360803455114365, 0.0013861897168681026, 0.020951949059963226, 0.017970498651266098, 0.08269724994897842, 0.04473075643181801, -0.030526669695973396, -0.06568095833063126, 0.01841839961707592, 0.01098658423870802, -0.03208334743976593, -0.012707728892564774, -0.008...
75	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991931.txt	01991931.txt	TXT	text/plain	11,899	01 . Lisa R. Matthews, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.	November 6, 1998	Appeal Number: 01991931 Case Facts: Lisa R. Matthews (complainant) filed an appeal with the Equal Employment Opportunity Commission (Commission) from a final agency decision (FAD) dated November 6, 1998, and received by complainant on November 17, 1998, 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. (Supp. 1994 & Supp. IV 1999). The appeal was postmarked December 16, 1998. Accordingly, the appeal is timely pursuant to 29 C.F.R. § 1614.402(a), and is accepted in accordance with 29 C.F.R. § 1614.405. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed complainant's complaint for untimely EEO Counselor contact. BACKGROUND On August 3, 1997, complainant contacted her union representative to determine whether the representative thought that she had grounds for a complaint. On August 12, 1997, complainant initiated EEO counselor contact alleging that she had been subjected to sexual and non-sexual harassment based on her sex (female) when: On June 27, 1997, she was terminated during her probationary period from her position as a Pharmacy Technician; From August 1996 through June 27, 1997, she was subjected to intense working conditions due to harassment and sexual harassment because the Director of Consolidated Mail Outpatient Pharmacy (CMOP) yelled and screamed at employees, used profanity, flirted and carried on horseplay with some employees; On April 3, 1997, the Director of CMOP and an electrician talked for ten to fifteen minutes near the manual station where she worked and practically every other word that came out of their mouths was either god-damn or mother-f***; On May 7, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay; and On June 6, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay which she found offensive and caused her to feel uncomfortable. In its FAD dated November 6, 1998, the agency dismissed complainant's complaint for untimely EEO counselor contact. The agency found that complainant had not contacted an agency official logically connected to the EEO process when she contacted her union official on August 3, 1997. Further, the agency found complainant's allusion to her lack of knowledge about what constituted the basis of a complaint to be without merit because there was evidence on file that complainant had attended four hours of training on August 6, 1996, on the discrimination complaint process which covered the basis of an EEO complaint; and, had also attended a two-hour training session on sexual harassment on November 13, 1996. FINDINGS AND Legal Analysis: The Commission has consistently held that a complainant satisfies the criterion of EEO 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 Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). Here, complainant states that she contacted her union representative the week of August 3, 1999, primarily because she thought the union representative was involved with the EEO process as she was on an agency contact list of EEO officials. The record includes a copy of a agency pamphlet entitled Prevention of Sexual Harassment: EEO Officials. This same contact list gave the name and telephone number of EEO Counselors as well as similar information for the union representative, agency's EEO Officer, EEO Manager, the Inspector General and the National EEO Information Line. There was no information on the pamphlet indicating which contacts would not be considered valid for EEO complaint purposes. In rebutting complainant's arguments, the agency supplied documentation showing that complainant was given a four-hour training class on sexual harassment and discrimination complaint processing on August 6, 1996; in addition, complainant also received a detailed memo on Procedures for Filing an EEO Complaint. This memo included the contact information for the agency's EEO Program Manager. Finally, the agency provided a copy of its Federal EEO Complaint Process poster, which it noted as having been posted on its EEO bulletin boards since 1993. However, in reviewing the agency's sexual harassment pamphlet, a complainant may erroneously be led to believe that contacting the union representative, the Inspector General Hotline or the agency's Employment Assistance Program are as valid for EEO contact purposes as the EEO Counselors or the EEO Manager listed on the pamphlet. In view of this evidence, we find persuasive complainant's belief that contact with the union official constituted contact with an individual logically connected with the EEO process. Therefore, the agency's dismissal was improper. Final Decision: Accordingly, the appeal is timely pursuant to 29 C.F.R. § 1614.402(a), and is accepted in accordance with 29 C.F.R. § 1614.405. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed complainant's complaint for untimely EEO Counselor contact. BACKGROUND On August 3, 1997, complainant contacted her union representative to determine whether the representative thought that she had grounds for a complaint. On August 12, 1997, complainant initiated EEO counselor contact alleging that she had been subjected to sexual and non-sexual harassment based on her sex (female) when: On June 27, 1997, she was terminated during her probationary period from her position as a Pharmacy Technician; From August 1996 through June 27, 1997, she was subjected to intense working conditions due to harassment and sexual harassment because the Director of Consolidated Mail Outpatient Pharmacy (CMOP) yelled and screamed at employees, used profanity, flirted and carried on horseplay with some employees; On April 3, 1997, the Director of CMOP and an electrician talked for ten to fifteen minutes near the manual station where she worked and practically every other word that came out of their mouths was either god-damn or mother-f***; On May 7, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay; and On June 6, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay which she found offensive and caused her to feel uncomfortable. In its FAD dated November 6, 1998, the agency dismissed complainant's complaint for untimely EEO counselor contact. The agency found that complainant had not contacted an agency official logically connected to the EEO process when she contacted her union official on August 3, 1997. Further, the agency found complainant's allusion to her lack of knowledge about what constituted the basis of a complaint to be without merit because there was evidence on file that complainant had attended four hours of training on August 6, 1996, on the discrimination complaint process which covered the basis of an EEO complaint; and, had also attended a two-hour training session on sexual harassment on November 13, 1996. FINDINGS AND ANALYSIS Generally, claims of discrimination must be raised with an EEO Counselor within forty-five (45) days of the effective date of the personnel action in question. See 29 C.F.R. § 1614.105(a)(1). The agency may dismiss claims that fail to comply with this time limit. See 29 C.F.R. § 1614.107(a)(2). The Commission has consistently held that a complainant satisfies the criterion of EEO 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 Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). Here, complainant states that she contacted her union representative the week of August 3, 1999, primarily because she thought the union representative was involved with the EEO process as she was on an agency contact list of EEO officials. The record includes a copy of a agency pamphlet entitled Prevention of Sexual Harassment: EEO Officials. This same contact list gave the name and telephone number of EEO Counselors as well as similar information for the union representative, agency's EEO Officer, EEO Manager, the Inspector General and the National EEO Information Line. There was no information on the pamphlet indicating which contacts would not be considered valid for EEO complaint purposes. In rebutting complainant's arguments, the agency supplied documentation showing that complainant was given a four-hour training class on sexual harassment and discrimination complaint processing on August 6, 1996; in addition, complainant also received a detailed memo on Procedures for Filing an EEO Complaint. This memo included the contact information for the agency's EEO Program Manager. Finally, the agency provided a copy of its Federal EEO Complaint Process poster, which it noted as having been posted on its EEO bulletin boards since 1993. However, in reviewing the agency's sexual harassment pamphlet, a complainant may erroneously be led to believe that contacting the union representative, the Inspector General Hotline or the agency's Employment Assistance Program are as valid for EEO contact purposes as the EEO Counselors or the EEO Manager listed on the pamphlet. In view of this evidence, we find persuasive complainant's belief that contact with the union official constituted contact with an individual logically connected with the EEO process. Therefore, the agency's dismissal was improper. CONCLUSION The agency decision to dismiss complainant's claim was improper and is REVERSED.	Lisa R. Matthews v. Department of Veterans Affairs 01991931 05-31-01 . Lisa R. Matthews, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01991931 Agency No. 984179 DECISION Lisa R. Matthews (complainant) filed an appeal with the Equal Employment Opportunity Commission (Commission) from a final agency decision (FAD) dated November 6, 1998, and received by complainant on November 17, 1998, 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. (Supp. 1994 & Supp. IV 1999). The appeal was postmarked December 16, 1998. Accordingly, the appeal is timely pursuant to 29 C.F.R. § 1614.402(a), and is accepted in accordance with 29 C.F.R. § 1614.405. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed complainant's complaint for untimely EEO Counselor contact. BACKGROUND On August 3, 1997, complainant contacted her union representative to determine whether the representative thought that she had grounds for a complaint. On August 12, 1997, complainant initiated EEO counselor contact alleging that she had been subjected to sexual and non-sexual harassment based on her sex (female) when: On June 27, 1997, she was terminated during her probationary period from her position as a Pharmacy Technician; From August 1996 through June 27, 1997, she was subjected to intense working conditions due to harassment and sexual harassment because the Director of Consolidated Mail Outpatient Pharmacy (CMOP) yelled and screamed at employees, used profanity, flirted and carried on horseplay with some employees; On April 3, 1997, the Director of CMOP and an electrician talked for ten to fifteen minutes near the manual station where she worked and practically every other word that came out of their mouths was either god-damn or mother-f*****; On May 7, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay; and On June 6, 1997, she witnessed the Director of CMOP and another employee engaged in horseplay which she found offensive and caused her to feel uncomfortable. In its FAD dated November 6, 1998, the agency dismissed complainant's complaint for untimely EEO counselor contact. The agency found that complainant had not contacted an agency official logically connected to the EEO process when she contacted her union official on August 3, 1997. Further, the agency found complainant's allusion to her lack of knowledge about what constituted the basis of a complaint to be without merit because there was evidence on file that complainant had attended four hours of training on August 6, 1996, on the discrimination complaint process which covered the basis of an EEO complaint; and, had also attended a two-hour training session on sexual harassment on November 13, 1996. FINDINGS AND ANALYSIS Generally, claims of discrimination must be raised with an EEO Counselor within forty-five (45) days of the effective date of the personnel action in question. See 29 C.F.R. § 1614.105(a)(1). The agency may dismiss claims that fail to comply with this time limit. See 29 C.F.R. § 1614.107(a)(2). The Commission has consistently held that a complainant satisfies the criterion of EEO 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 Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996). Here, complainant states that she contacted her union representative the week of August 3, 1999, primarily because she thought the union representative was involved with the EEO process as she was on an agency contact list of EEO officials. The record includes a copy of a agency pamphlet entitled Prevention of Sexual Harassment: EEO Officials. This same contact list gave the name and telephone number of EEO Counselors as well as similar information for the union representative, agency's EEO Officer, EEO Manager, the Inspector General and the National EEO Information Line. There was no information on the pamphlet indicating which contacts would not be considered valid for EEO complaint purposes. In rebutting complainant's arguments, the agency supplied documentation showing that complainant was given a four-hour training class on sexual harassment and discrimination complaint processing on August 6, 1996; in addition, complainant also received a detailed memo on Procedures for Filing an EEO Complaint. This memo included the contact information for the agency's EEO Program Manager. Finally, the agency provided a copy of its Federal EEO Complaint Process poster, which it noted as having been posted on its EEO bulletin boards since 1993. However, in reviewing the agency's sexual harassment pamphlet, a complainant may erroneously be led to believe that contacting the union representative, the Inspector General Hotline or the agency's Employment Assistance Program are as valid for EEO contact purposes as the EEO Counselors or the EEO Manager listed on the pamphlet. In view of this evidence, we find persuasive complainant's belief that contact with the union official constituted contact with an individual logically connected with the EEO process. Therefore, the agency's dismissal was improper. CONCLUSION The agency decision to dismiss complainant's claim was improper and is REVERSED. This claim is REMANDED to the agency for further processing in accordance with the ORDER below. ORDER The agency is ORDERED to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claim 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900) 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)(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 29 C.F.R. § 1614.409. 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 (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 ___05-31-01_______________ Date	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 8, 1996)", "29 C.F.R. § 1614.402(a)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.107(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....	[ -0.09684019535779953, 0.0579582080245018, -0.014484562911093235, 0.057583972811698914, 0.024413321167230606, 0.063540019094944, -0.00035821579513140023, 0.013685840182006359, 0.008422749117016792, 0.021628908812999725, 0.03093535080552101, -0.03467267006635666, -0.031377218663692474, 0.007...
76	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082521.txt	0120082521.txt	TXT	text/plain	34,178	Roger F. Schofield, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.	May 6, 2008	Appeal Number: 0120082521 Background: At the time of events giving rise to this complaint, Complainant worked as a Supervisory Assistant to the Special Agent in Charge (ATSAC) at the Agencyâs facility in Las Vegas, Nevada. On December 12, 2006, Complainant filed an EEO complaint alleging that the Agency harassed him in reprisal for prior protected EEO activity under Title II when: 1. In August 2006, he was directed by the Assistant Special Agent in Charge (A-1) to submit any notes he had from a selection panel showing negative remarks made by another ATSAC, B-1, regarding his dislike for a particular Federal Air Marshal (C-l). After Complainant turned over his notes, he became aware that A-1 provided those notes to B-1; 2. In October 2005, A-1 threatened him with physical violence and threw rolled up documents at him, which hit him in the face; 3. In August 2006, A-1 made an inappropriate comment that suggested that he hold urine sample cups during drug testing; 4. In November 2006, A-1 attempted to solicit derogatory information about him in order to subvert any future investigations; 5. On August 12, 2006, A-1 assigned him to work a six-day week, while the retired annuitants were allowed to participate in a golf tournament; and, 6. In October 2006, A-1 arbitrarily assigned him to work over the Christmas holiday, whereas the newly hired B-1 did not have to work. In an investigative affidavit, Complainant stated that he had previously engaged in EEO activity when he provided an investigative affidavit response for a subordinateâs EEO complaint on November 1, 2005. Also, Complainant stated that he once served on a selection panel for the Joint Terrorism Task Force and witnessed B-1 make a derogatory comment about C-1 that appalled him. Complainant stated that he did not feel comfortable providing an EEO statement for C-1 because he knew that A-1 had a close relationship with B-1. According to Complainant, he provided his selection notes to the EEO investigator. Complainant was sure that A-1 was contacted about his EEO participation, because another Assistant Special Agent in Charge (A-2) told him that he could not believe that Complainant would give the EEO investigator confidential information. A-2 also asked Complainant if he expected A-1 to believe that he did not know not to release the information to the EEO investigator. Complainant further stated that A-1 and the Special Agency in Charge (SAC) told him that he was not considered part of the management team because he had talked to C-1. Regarding claim 2, Complainant stated that during a meeting in October 2005, A-1 questioned him about a leave slip submitted by an employee who had filed an EEO complaint that named A-1 as the responsible management official. Complainant informed A-1 that the leave slip was superseded by a workersâ compensation form (CA-7) that the employee had submitted, and A-1 stood over Complainant and stated that he should hit Complainant over the eyes. Complainant further stated that A-1 then struck him with a wad of papers on the side of the face. Complainant further stated that in August 2006, A-1 suggested that he hold the urine cups that are used to test candidates. He stated that A-1 made the comment in front of a female subordinate in order to raise questions about his masculinity. A-1 stated that he had no recollection of the incident, and there were no random drug tests administered at the Las Vegas Field Office in 2006. Complainant also stated that in November 2006, he was informed by a co-worker that he had received an email from A-1 regarding Complainantâs allegation that A-1 subjected him to constant harassment. According to Complainant, A-1 was attempting to solicit derogatory information about him. A-1 stated that he did not attempt to subvert any investigation by soliciting derogatory information about Complainant. Complainant further stated that when he returned from a six-day detail on August 11, 2006, A-1 directed him to report to the airport for duty the following morning. He stated that he had no problem with the additional work assignment until he was notified that the âannuitantsâ1 were not assigned to work the extra duty and were given time off to participate in a golf tournament. Tab F-1. Complainant also stated that in October 2006, A-1 assigned him to work over the Christmas holiday. He stated that in the previous four years, the other annuitants had not been assigned to work holidays, but he had been assigned to work holidays three of the last four years. In his investigative statement, A-1 stated that during a meeting with Complainant on October 24, 2005, he attempted to show Complainant inconsistencies in his Conduct Incident Report, which alleged that an employee had engaged in misconduct. He stated that Complainant continued to deny his mistakes and refused to accept the report, and in frustration, A-1 tossed the report on Complainantâs lap and told him to read it. He further stated that he did tell another management official that Complainant âneeded to get it right between the eyes.â Tab F-2. A-1 stated that Complainant provided him with notes concerning C-1âs EEO claim on August 29, 2006. He stated that the notes were critical of the selection panel and accused B-1 of making derogatory comments about C-1. A-1 stated that he did not give a copy of Complainantâs selection panel notes to B-1 because Agency attorneys advised him not to do so, but he considered giving B-1 the notes. He stated that he told B-1 that Complainant claimed that B-1 had made a defamatory statement about C-1 during the selection process and that he would probably receive an inquiry from an attorney regarding Complainantâs notes. He further stated that he gave a copy of Complainantâs notes to the Agency attorney. A-1 further stated that he required Complainant to work on August 12, 2006, because of a national security alert. He stated that he could not assign other annuitants to work that day because they were on leave. However, he also stated that he later cancelled B-1âs annual leave on August 11, 2006, recalled him to the office, and assigned him security duties at the Las Vegas airport. A-1 also stated that time and attendance records reflect that Complainant did not work the Christmas holiday in 2004, 2005, and 2006. He further stated that if Complainant was assigned to work during Christmas, he would have suggested that he work out an arrangement with B-2, another ATSAC, who worked on Christmas in 2004 and 2005. He stated that weekly assignments are based on a rotational schedule instead of seniority, and Complainant never indicated that he was dissatisfied with a holiday assignment. B-1 stated that during the selection process involving C-1, he noted that two of the candidates for the Joint Terrorism Task Force position were African-American, one was Hispanic, and one was Caucasian. He stated that he gave C-1 a negative recommendation because he removed himself from the Immigration and Customs Enforcement Task Force without approval from the Las Vegas Field Office Management. He further stated that he informed the panel of C-1âs insubordinate and unprofessional conduct, and was emphatic that C-1 should not be selected. B-1 further stated that he became aware that Complainant had provided notes from the selection panel that indicated his negative remarks about C-1. He noted that he had no idea what the remarks were, because he had never been given the opportunity to see the notes. B-1 also stated that A-1 did not provide any notes to him. B-1 stated that in November 2006, Complainant told him that he was âgoing to f-ck [A-1] in the ass.â B-1 stated that he told A-1 about Complainantâs statement and suggested that A-1 start memorializing his dealings with Complainant. He stated that within a day or two of the conversation, A-1 sent an email to him and B-3, another ATSAC, where he stated that he was ready to file a counter complaint against Complainant and inquired if they could document comments made by Complainant about him. A-2 stated that Complainant informed him that A-1 had provided B-1 with information regarding C-1âs EEO complaint. He stated that he responded that he could not believe that a former member of the Senior Executive Service would provide private EEO information to a third party. He further stated that he believed that both Complainant and A-1 informed him that A-1 had told B-1 that Complainant provided EEO officials with information pertaining to an EEO case. B-4, another ATSAC, stated that, in an email, A-1 asked Complainant to turn over notes concerning derogatory comments he made about C-1. He stated that Complainant told him that he was aware that A-1 shared the notes with B-1, but was unable to say if he had firsthand knowledge of how the information was shared. B-3 stated that A-1 sent an email to him and B-1 in which he requested information regarding Complainantâs comments about him. He stated that he informed A-1 that Complainant stated that he hated A-1 and was going to get him. He further stated that Complainant once stated in the gym that he was âgoing to f-ck [A-1] in his ass.â B-2 stated that he worked during Christmas 2004 and 2005 based upon his voluntary request. He stated that Complainant was assigned to work Christmas 2006. He stated that after he volunteered to work Christmas 2006, A-1 told him to seek an arrangement with Complainant, but Complainant failed to follow up on his offer to work Christmas 2006. 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 AJ. Complainant timely requested a hearing. AJâs Decision On January 17, 2008, the Agency moved for a decision without a hearing. In a decision dated March 31, 2008, the AJ found that Complainant failed to show that he was subjected to reprisal because claim 2 predated his EEO activity. Regarding the remaining incidents, the AJ found that there was no nexus between Complainantâs EEO activity and the alleged incidents because the poor relationship between Complainant and A-1 existed long before his involvement in the EEO process; Complaint coveted A-1âs position; and, Complainant attributed A-1âs hostility toward him to âpersonality conflicts.â The AJ further found that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. The AJ opined that the actions were isolated and minor matters that âconstitute nothing more than the ordinary tribulations of the workplace.â AJâs Decision, p. 17. The Agency subsequently issued a final order fully adopting the AJâs findings. CONTENTIONS ON APPEAL In a very brief appeal statement, Complainant maintained that the AJ improperly found no discrimination. The Agency requested that we affirm its final order. Legal Analysis: The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. Â§Â 1614.405(a). For the following reasons, the Commission MODIFIES the Agencyâs final order. ISSUES PRESENTED 1. Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing. 2. Whether the AJ properly found that Complainant was not subjected to reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Assistant to the Special Agent in Charge (ATSAC) at the Agencyâs facility in Las Vegas, Nevada. On December 12, 2006, Complainant filed an EEO complaint alleging that the Agency harassed him in reprisal for prior protected EEO activity under Title II when: 1. In August 2006, he was directed by the Assistant Special Agent in Charge (A-1) to submit any notes he had from a selection panel showing negative remarks made by another ATSAC, B-1, regarding his dislike for a particular Federal Air Marshal (C-l). After Complainant turned over his notes, he became aware that A-1 provided those notes to B-1; 2. In October 2005, A-1 threatened him with physical violence and threw rolled up documents at him, which hit him in the face; 3. In August 2006, A-1 made an inappropriate comment that suggested that he hold urine sample cups during drug testing; 4. In November 2006, A-1 attempted to solicit derogatory information about him in order to subvert any future investigations; 5. On August 12, 2006, A-1 assigned him to work a six-day week, while the retired annuitants were allowed to participate in a golf tournament; and, 6. In October 2006, A-1 arbitrarily assigned him to work over the Christmas holiday, whereas the newly hired B-1 did not have to work. In an investigative affidavit, Complainant stated that he had previously engaged in EEO activity when he provided an investigative affidavit response for a subordinateâs EEO complaint on November 1, 2005. Also, Complainant stated that he once served on a selection panel for the Joint Terrorism Task Force and witnessed B-1 make a derogatory comment about C-1 that appalled him. Complainant stated that he did not feel comfortable providing an EEO statement for C-1 because he knew that A-1 had a close relationship with B-1. According to Complainant, he provided his selection notes to the EEO investigator. Complainant was sure that A-1 was contacted about his EEO participation, because another Assistant Special Agent in Charge (A-2) told him that he could not believe that Complainant would give the EEO investigator confidential information. A-2 also asked Complainant if he expected A-1 to believe that he did not know not to release the information to the EEO investigator. Complainant further stated that A-1 and the Special Agency in Charge (SAC) told him that he was not considered part of the management team because he had talked to C-1. Regarding claim 2, Complainant stated that during a meeting in October 2005, A-1 questioned him about a leave slip submitted by an employee who had filed an EEO complaint that named A-1 as the responsible management official. Complainant informed A-1 that the leave slip was superseded by a workersâ compensation form (CA-7) that the employee had submitted, and A-1 stood over Complainant and stated that he should hit Complainant over the eyes. Complainant further stated that A-1 then struck him with a wad of papers on the side of the face. Complainant further stated that in August 2006, A-1 suggested that he hold the urine cups that are used to test candidates. He stated that A-1 made the comment in front of a female subordinate in order to raise questions about his masculinity. A-1 stated that he had no recollection of the incident, and there were no random drug tests administered at the Las Vegas Field Office in 2006. Complainant also stated that in November 2006, he was informed by a co-worker that he had received an email from A-1 regarding Complainantâs allegation that A-1 subjected him to constant harassment. According to Complainant, A-1 was attempting to solicit derogatory information about him. A-1 stated that he did not attempt to subvert any investigation by soliciting derogatory information about Complainant. Complainant further stated that when he returned from a six-day detail on August 11, 2006, A-1 directed him to report to the airport for duty the following morning. He stated that he had no problem with the additional work assignment until he was notified that the âannuitantsâ1 were not assigned to work the extra duty and were given time off to participate in a golf tournament. Tab F-1. Complainant also stated that in October 2006, A-1 assigned him to work over the Christmas holiday. He stated that in the previous four years, the other annuitants had not been assigned to work holidays, but he had been assigned to work holidays three of the last four years. In his investigative statement, A-1 stated that during a meeting with Complainant on October 24, 2005, he attempted to show Complainant inconsistencies in his Conduct Incident Report, which alleged that an employee had engaged in misconduct. He stated that Complainant continued to deny his mistakes and refused to accept the report, and in frustration, A-1 tossed the report on Complainantâs lap and told him to read it. He further stated that he did tell another management official that Complainant âneeded to get it right between the eyes.â Tab F-2. A-1 stated that Complainant provided him with notes concerning C-1âs EEO claim on August 29, 2006. He stated that the notes were critical of the selection panel and accused B-1 of making derogatory comments about C-1. A-1 stated that he did not give a copy of Complainantâs selection panel notes to B-1 because Agency attorneys advised him not to do so, but he considered giving B-1 the notes. He stated that he told B-1 that Complainant claimed that B-1 had made a defamatory statement about C-1 during the selection process and that he would probably receive an inquiry from an attorney regarding Complainantâs notes. He further stated that he gave a copy of Complainantâs notes to the Agency attorney. A-1 further stated that he required Complainant to work on August 12, 2006, because of a national security alert. He stated that he could not assign other annuitants to work that day because they were on leave. However, he also stated that he later cancelled B-1âs annual leave on August 11, 2006, recalled him to the office, and assigned him security duties at the Las Vegas airport. A-1 also stated that time and attendance records reflect that Complainant did not work the Christmas holiday in 2004, 2005, and 2006. He further stated that if Complainant was assigned to work during Christmas, he would have suggested that he work out an arrangement with B-2, another ATSAC, who worked on Christmas in 2004 and 2005. He stated that weekly assignments are based on a rotational schedule instead of seniority, and Complainant never indicated that he was dissatisfied with a holiday assignment. B-1 stated that during the selection process involving C-1, he noted that two of the candidates for the Joint Terrorism Task Force position were African-American, one was Hispanic, and one was Caucasian. He stated that he gave C-1 a negative recommendation because he removed himself from the Immigration and Customs Enforcement Task Force without approval from the Las Vegas Field Office Management. He further stated that he informed the panel of C-1âs insubordinate and unprofessional conduct, and was emphatic that C-1 should not be selected. B-1 further stated that he became aware that Complainant had provided notes from the selection panel that indicated his negative remarks about C-1. He noted that he had no idea what the remarks were, because he had never been given the opportunity to see the notes. B-1 also stated that A-1 did not provide any notes to him. B-1 stated that in November 2006, Complainant told him that he was âgoing to f-ck [A-1] in the ass.â B-1 stated that he told A-1 about Complainantâs statement and suggested that A-1 start memorializing his dealings with Complainant. He stated that within a day or two of the conversation, A-1 sent an email to him and B-3, another ATSAC, where he stated that he was ready to file a counter complaint against Complainant and inquired if they could document comments made by Complainant about him. A-2 stated that Complainant informed him that A-1 had provided B-1 with information regarding C-1âs EEO complaint. He stated that he responded that he could not believe that a former member of the Senior Executive Service would provide private EEO information to a third party. He further stated that he believed that both Complainant and A-1 informed him that A-1 had told B-1 that Complainant provided EEO officials with information pertaining to an EEO case. B-4, another ATSAC, stated that, in an email, A-1 asked Complainant to turn over notes concerning derogatory comments he made about C-1. He stated that Complainant told him that he was aware that A-1 shared the notes with B-1, but was unable to say if he had firsthand knowledge of how the information was shared. B-3 stated that A-1 sent an email to him and B-1 in which he requested information regarding Complainantâs comments about him. He stated that he informed A-1 that Complainant stated that he hated A-1 and was going to get him. He further stated that Complainant once stated in the gym that he was âgoing to f-ck [A-1] in his ass.â B-2 stated that he worked during Christmas 2004 and 2005 based upon his voluntary request. He stated that Complainant was assigned to work Christmas 2006. He stated that after he volunteered to work Christmas 2006, A-1 told him to seek an arrangement with Complainant, but Complainant failed to follow up on his offer to work Christmas 2006. At the	ï»¿ Roger F. Schofield, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency. Appeal No. 0120082521 Hearing No. 480-2007-00617X Agency No. HS-06-TSA-005682 DECISION On May 6, 2008, Complainant filed an appeal from the Agencyâs April 11, 2008, final order 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. Â§ 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. Â§Â 1614.405(a). For the following reasons, the Commission MODIFIES the Agencyâs final order. ISSUES PRESENTED 1. Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing. 2. Whether the AJ properly found that Complainant was not subjected to reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Assistant to the Special Agent in Charge (ATSAC) at the Agencyâs facility in Las Vegas, Nevada. On December 12, 2006, Complainant filed an EEO complaint alleging that the Agency harassed him in reprisal for prior protected EEO activity under Title II when: 1. In August 2006, he was directed by the Assistant Special Agent in Charge (A-1) to submit any notes he had from a selection panel showing negative remarks made by another ATSAC, B-1, regarding his dislike for a particular Federal Air Marshal (C-l). After Complainant turned over his notes, he became aware that A-1 provided those notes to B-1; 2. In October 2005, A-1 threatened him with physical violence and threw rolled up documents at him, which hit him in the face; 3. In August 2006, A-1 made an inappropriate comment that suggested that he hold urine sample cups during drug testing; 4. In November 2006, A-1 attempted to solicit derogatory information about him in order to subvert any future investigations; 5. On August 12, 2006, A-1 assigned him to work a six-day week, while the retired annuitants were allowed to participate in a golf tournament; and, 6. In October 2006, A-1 arbitrarily assigned him to work over the Christmas holiday, whereas the newly hired B-1 did not have to work. In an investigative affidavit, Complainant stated that he had previously engaged in EEO activity when he provided an investigative affidavit response for a subordinateâs EEO complaint on November 1, 2005. Also, Complainant stated that he once served on a selection panel for the Joint Terrorism Task Force and witnessed B-1 make a derogatory comment about C-1 that appalled him. Complainant stated that he did not feel comfortable providing an EEO statement for C-1 because he knew that A-1 had a close relationship with B-1. According to Complainant, he provided his selection notes to the EEO investigator. Complainant was sure that A-1 was contacted about his EEO participation, because another Assistant Special Agent in Charge (A-2) told him that he could not believe that Complainant would give the EEO investigator confidential information. A-2 also asked Complainant if he expected A-1 to believe that he did not know not to release the information to the EEO investigator. Complainant further stated that A-1 and the Special Agency in Charge (SAC) told him that he was not considered part of the management team because he had talked to C-1. Regarding claim 2, Complainant stated that during a meeting in October 2005, A-1 questioned him about a leave slip submitted by an employee who had filed an EEO complaint that named A-1 as the responsible management official. Complainant informed A-1 that the leave slip was superseded by a workersâ compensation form (CA-7) that the employee had submitted, and A-1 stood over Complainant and stated that he should hit Complainant over the eyes. Complainant further stated that A-1 then struck him with a wad of papers on the side of the face. Complainant further stated that in August 2006, A-1 suggested that he hold the urine cups that are used to test candidates. He stated that A-1 made the comment in front of a female subordinate in order to raise questions about his masculinity. A-1 stated that he had no recollection of the incident, and there were no random drug tests administered at the Las Vegas Field Office in 2006. Complainant also stated that in November 2006, he was informed by a co-worker that he had received an email from A-1 regarding Complainantâs allegation that A-1 subjected him to constant harassment. According to Complainant, A-1 was attempting to solicit derogatory information about him. A-1 stated that he did not attempt to subvert any investigation by soliciting derogatory information about Complainant. Complainant further stated that when he returned from a six-day detail on August 11, 2006, A-1 directed him to report to the airport for duty the following morning. He stated that he had no problem with the additional work assignment until he was notified that the âannuitantsâ1 were not assigned to work the extra duty and were given time off to participate in a golf tournament. Tab F-1. Complainant also stated that in October 2006, A-1 assigned him to work over the Christmas holiday. He stated that in the previous four years, the other annuitants had not been assigned to work holidays, but he had been assigned to work holidays three of the last four years. In his investigative statement, A-1 stated that during a meeting with Complainant on October 24, 2005, he attempted to show Complainant inconsistencies in his Conduct Incident Report, which alleged that an employee had engaged in misconduct. He stated that Complainant continued to deny his mistakes and refused to accept the report, and in frustration, A-1 tossed the report on Complainantâs lap and told him to read it. He further stated that he did tell another management official that Complainant âneeded to get it right between the eyes.â Tab F-2. A-1 stated that Complainant provided him with notes concerning C-1âs EEO claim on August 29, 2006. He stated that the notes were critical of the selection panel and accused B-1 of making derogatory comments about C-1. A-1 stated that he did not give a copy of Complainantâs selection panel notes to B-1 because Agency attorneys advised him not to do so, but he considered giving B-1 the notes. He stated that he told B-1 that Complainant claimed that B-1 had made a defamatory statement about C-1 during the selection process and that he would probably receive an inquiry from an attorney regarding Complainantâs notes. He further stated that he gave a copy of Complainantâs notes to the Agency attorney. A-1 further stated that he required Complainant to work on August 12, 2006, because of a national security alert. He stated that he could not assign other annuitants to work that day because they were on leave. However, he also stated that he later cancelled B-1âs annual leave on August 11, 2006, recalled him to the office, and assigned him security duties at the Las Vegas airport. A-1 also stated that time and attendance records reflect that Complainant did not work the Christmas holiday in 2004, 2005, and 2006. He further stated that if Complainant was assigned to work during Christmas, he would have suggested that he work out an arrangement with B-2, another ATSAC, who worked on Christmas in 2004 and 2005. He stated that weekly assignments are based on a rotational schedule instead of seniority, and Complainant never indicated that he was dissatisfied with a holiday assignment. B-1 stated that during the selection process involving C-1, he noted that two of the candidates for the Joint Terrorism Task Force position were African-American, one was Hispanic, and one was Caucasian. He stated that he gave C-1 a negative recommendation because he removed himself from the Immigration and Customs Enforcement Task Force without approval from the Las Vegas Field Office Management. He further stated that he informed the panel of C-1âs insubordinate and unprofessional conduct, and was emphatic that C-1 should not be selected. B-1 further stated that he became aware that Complainant had provided notes from the selection panel that indicated his negative remarks about C-1. He noted that he had no idea what the remarks were, because he had never been given the opportunity to see the notes. B-1 also stated that A-1 did not provide any notes to him. B-1 stated that in November 2006, Complainant told him that he was âgoing to f-ck [A-1] in the ass.â B-1 stated that he told A-1 about Complainantâs statement and suggested that A-1 start memorializing his dealings with Complainant. He stated that within a day or two of the conversation, A-1 sent an email to him and B-3, another ATSAC, where he stated that he was ready to file a counter complaint against Complainant and inquired if they could document comments made by Complainant about him. A-2 stated that Complainant informed him that A-1 had provided B-1 with information regarding C-1âs EEO complaint. He stated that he responded that he could not believe that a former member of the Senior Executive Service would provide private EEO information to a third party. He further stated that he believed that both Complainant and A-1 informed him that A-1 had told B-1 that Complainant provided EEO officials with information pertaining to an EEO case. B-4, another ATSAC, stated that, in an email, A-1 asked Complainant to turn over notes concerning derogatory comments he made about C-1. He stated that Complainant told him that he was aware that A-1 shared the notes with B-1, but was unable to say if he had firsthand knowledge of how the information was shared. B-3 stated that A-1 sent an email to him and B-1 in which he requested information regarding Complainantâs comments about him. He stated that he informed A-1 that Complainant stated that he hated A-1 and was going to get him. He further stated that Complainant once stated in the gym that he was âgoing to f-ck [A-1] in his ass.â B-2 stated that he worked during Christmas 2004 and 2005 based upon his voluntary request. He stated that Complainant was assigned to work Christmas 2006. He stated that after he volunteered to work Christmas 2006, A-1 told him to seek an arrangement with Complainant, but Complainant failed to follow up on his offer to work Christmas 2006. 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 AJ. Complainant timely requested a hearing. AJâs Decision On January 17, 2008, the Agency moved for a decision without a hearing. In a decision dated March 31, 2008, the AJ found that Complainant failed to show that he was subjected to reprisal because claim 2 predated his EEO activity. Regarding the remaining incidents, the AJ found that there was no nexus between Complainantâs EEO activity and the alleged incidents because the poor relationship between Complainant and A-1 existed long before his involvement in the EEO process; Complaint coveted A-1âs position; and, Complainant attributed A-1âs hostility toward him to âpersonality conflicts.â The AJ further found that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. The AJ opined that the actions were isolated and minor matters that âconstitute nothing more than the ordinary tribulations of the workplace.â AJâs Decision, p. 17. The Agency subsequently issued a final order fully adopting the AJâs findings. CONTENTIONS ON APPEAL In a very brief appeal statement, Complainant maintained that the AJ improperly found no discrimination. The Agency requested that we affirm its final order. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJâs legal and factual conclusions, and the Agencyâs final order adopting them, de novo. See 29 C.F.R. Â§Â 1614.405(a) (stating that a âdecision on an appeal from an Agencyâs final action shall be based on a de novo review . . .â); see also EEOC Management Directive 110, Chapter 9, Â§Â VI.B. (November 9, 1999) (providing that an administrative judgeâs âdecision to issue a decision without a hearing pursuant to [29 C.F.R. Â§Â 1614.109(g)] will be reviewed de novoâ). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJâs, and Agencyâs, factual conclusions and legal analysis â including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, Â§Â VI.A. (explaining that the de novo standard of review ârequires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,â and that EEOC âreview the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commissionâs own assessment of the record and its interpretation of the lawâ). The Commissionâs regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. Â§Â 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a courtâs function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving partyâs favor. Id. at 255. An issue of fact is âgenuineâ 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 âmaterialâ if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. However, although we find that no genuine issues of material fact exists and that the AJ's issuance of a decision without a hearing was appropriate, we find, as will be explained below, that the AJ erred as a matter of law with respect to his findings of no discrimination concerning claims 1 and 4. Reprisal It is well-established that harassment based on an employee for engaging in protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of retaliatory harassment, the complainant must show that: (1) he engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on his prior EEO activity; (4) the harassment 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). 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 (March 8, 1994). Protected activity is action taken in opposition, i.e., opposing a practice made unlawful by an EEO statute, or participation in an EEO activity, i.e., filing a complaint, testifying, assisting, or participating in any part of the EEO process. See EEOC Compliance Manual, Section 8: Retaliation. Moreover, statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also EEOC Compliance Manual Section 8, âRetaliation,â No. 915.003 (May 20, 1998), at 8-15. Claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. EEOC Compliance Manual Section 8, âRetaliation,â No. 915.003 at 8-6. In this case, we agree that there is no genuine issue of material fact. With respect to Complainantâs retaliation claim, the record reveals that Complainant previously engaged in EEO activity when he submitted an affidavit for a subordinateâs EEO complaint on November 1, 2005, and provided selection panel notes and affidavit statements for C-1âs EEO complaint on or about August 29, 2006. The record further reveals that A-1 acknowledged that he knew about Complainantâs EEO activity on or about August 29, 2006, when he learned that Complainant submitted notes for C-1âs EEO complaint. Although the record reveals that Complainant also provided an affidavit for another subordinate employeeâs EEO complaint on November 1, 2005, he failed to show how this was related to the Agencyâs alleged actions in this case. Moreover, the incidents in claim 2 cannot be based on reprisal because they predated Complainantâs EEO activity. However, there is a very close temporal nexus between Complainantâs August 2006 EEO activity and the remaining claims. Further, by A-1âs own admission, he was not only aware that Complainant provided selection panel notes to EEO officials, but considered giving a copy of Complainantâs notes to B-1, which creates a connection between Complainantâs EEO activity and A-1âs actions. Thus, contrary to the AJâs finding, we determine that a casual connection exists between Complainantâs prior EEO activity and claims 1, 3, 4, 5, and 6. Consequently, we find that Complainant established a prima facie case of reprisal. The Agency provided legitimate, non-discriminatory reasons for its actions with respect to clams 3, 5, and 6, as detailed above. Moreover, Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that these actions were motivated by retaliatory animus. Thus, we find that the AJ properly found no reprisal discrimination with respect to claims 3, 5, and 6. Claims 1 and 4 Regarding claims 1 and 4, the record contains a copy of an email from A-1 to B-1 and B-3 dated November 15, 2006. F15, p. 1. The Subject Line of A-1âs email stated: âFW: Request for EEO Assistance (HS-06-TSA-005682 Roger F. Schofield Jr.).â In the email, A-1 stated the following: I am ready to file a counter-complaint, can you [first name] document some of [Complainantâs first name] [sic] comments about me (F-king me in the A-, etc). The email also contained a forwarded email from an EEO counselor that was copied to A-1. In the email, the EEO counselor stated that Complainant had filed an informal EEO complaint in which he alleged that he was harassed by A-1 and requested remedies. The letter further stated that Complainant maintained that in August 2006, he was directed to turn over notes he took during a selection process involving an employee who filed an EEO complaint, but Complainant was reluctant to provide the notes because the notes were associated with the EEO complaint. The letter also asked management to respond to the allegations by November 22, 2006. The AJ found that A-1âs November 15, 2006 email was not an example of reprisal because it âwas only asking witnesses to memorialize the profane and derogatory [gym] comments.â However, we find that A-1 improperly publicized Complainantâs EEO activity by forwarding the EEO counselorâs email to other management officials, thereby revealing that Complainant had filed an EEO complaint. Further, A-1 paired the email regarding Complainantâs EEO activity with his solicitation of negative information to use against Complainant. In this regard, we note that the subject heading of A-1âs email was entitled âRequest for EEO Assistance (HS-06-TSA-005682, Roger F. Schofield Jr.),â underscores A-1âs retaliatory motive for sending his email to management officials. Moreover, we note that by threatening to file a âcounter-complaintâ against Complainant, A-1 acknowledged that his email was intended to challenge Complainantâs EEO activity. Hence, contrary to the AJâs determination, we find that the only reasonable conclusion is that A-1âs November 15, 2006 email was motivated by Complainantâs EEO activity. We also find that the AJ erred as a matter of law with respect to claim 1. In claim 1, Complainant alleged that A-1 ordered him to give him the notes that he had shared with EEO officials regarding B-1âs conduct on a selection panel. Complainant reluctantly complied with A-1âs order, although he felt uncomfortable about providing the notes because of A-1âs personal relationship with B-1. We note that A-1 did not deny that he ordered Complainant to provide him with a copy of notes he submitted to EEO officials. Instead, he acknowledged that he verbally divulged the contents of the notes submitted by Complainant to B-1 and even considered giving copies to B-1. Moreover, he further acknowledged that he gave Complainantâs notes to an Agency attorney. We find that, as a matter of law, such actions are reasonably likely to deter employees from engaging in EEO activity and therefore constitute unlawful reprisal. In this case, A-1 entangled himself into Complainantâs EEO activity when he ordered Complainant to provide him with the notes he submitted for an EEO investigation. There is no evidence that A-1âs actions were merely an unbiased attempt to assist with the investigation of C-1âs EEO complaint. Instead, by verbally sharing the notes with B-1, it is clear that A-1 procured Complainantâs notes and exposed its contents in an effort to intimidate Complainant and interfere with an ongoing EEO investigation. The Commission has long held that an employee may suffer unlawful retaliation if his supervisor interferes with his EEO activity. See Binseel v. Dept. of the Army, EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Dept. of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Dept. of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005). Thus, we conclude that A-1 unlawfully retaliated against Complainant by interfering with his EEO activity. Consequently, we find that the AJ committed legal error when she found that Complainant was not subjected to reprisal because of his EEO activity. CONCLUSION Accordingly, based upon a thorough review of the record and appeal statements, we AFFIRM the Agencyâs finding with respect to claims 2, 3, 5, and 6 because we find that the Agency properly found that Complainant was not subjected to unlawful reprisal regarding these matters. The Commission REVERSES the Agencyâs findings regarding claims 1 and 4 because we conclude that the Agency engaged in retaliation against Complainant with respect to these matters. In order to remedy the violation of Title VII, the Agency shall take the actions specified in the following Order. ORDER The Agency is ordered to take the following remedial actions: 1. The Agency shall provide EEO training to all managers and supervisors at the Agencyâs facilities in Las Vegas, Nevada. 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 A-1, the responsible management official. 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. Dept. 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 shall post the attached notice, as detailed below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled âImplementation of the Commission's Decision.â The report shall include supporting documentation verifying that the corrective actions have been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. Â§Â 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. Â§Â 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. Â§Â 1614.501. IMPLEMENTATION OF THE COMMISSIONâS DECISION (K0610) Compliance with the Commissionâs 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 Agencyâs 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 Commissionâs order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. Â§Â 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commissionâs order prior to or following an administrative petition for enforcement. See 29 C.F.R. Â§Â§Â 1614.407, 1614.408, and 29 C.F.R. Â§Â 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 âRight to File A Civil Action.â 29 C.F.R. Â§Â§Â 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. Â§Â 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 partyâs timely request for reconsideration. See 29 C.F.R. Â§Â 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. Â§Â 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. Â§Â 1614.604(c). COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agencyâs 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. âAgencyâ or âdepartmentâ 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. Â§ 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. Â§Â§ 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 (âRight to File A Civil Actionâ). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations November 2, 2010 Date 1 Complainant defined âannuitantsâ as retired federal law enforcement officers who were hired by the Agency. The annuitants received federal retirement annuities while serving as salaried employees with the Agency for up to five years. He identified himself, A-1, B-1, the Special Agent in Charge, and another employee as the annuitants. Tab F-2. ------------------------------------------------------------ ------------------------------------------------------------	[ "Binseel v. Dept. of the Army, EEOC Request No. 05970584 (October 8, 1998)", "Marr v. Dept. of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996)", "Whidbee v. Dept. of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005)", "Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)", "477...	[ -0.07583963871002197, 0.06028101220726967, -0.01401075441390276, 0.012224102392792702, 0.014705771580338478, 0.05156949162483215, 0.06019708514213562, 0.006644023582339287, -0.006034604739397764, 0.023015107959508896, 0.04579167440533638, -0.01074343454092741, -0.0023634189274162054, 0.002...
77	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985794.txt	01985794.txt	TXT	text/plain	14,982		February 29, 2000	Appeal Number: 01985794 Case Facts: On July 17, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by him on June 21, 1998, pertaining to 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. , 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> In his complaint, complainant alleged that he was subjected to discrimination on the bases of age (DOB 2/10/44), physical disability (HIV positive), and in reprisal for prior EEO activity when: Complainant received his Level III Performance Appraisal Rating (PARS) of November 17, 1997; and Complainant was subjected to acts of a hostile work environment from 1994 through 1997. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the agency noted that the last incident of alleged discrimination occurred on November 17, 1997, and complainant did not contact an EEO Counselor until January 22, 1998, twenty days beyond the applicable forty-five day time limit. In the March 21, 1998 counselor's report, the EEO Counselor noted that complainant stated that he contacted the former Deputy EEO Officer on November 17, 1997, and expressed a desire to file a complaint. In its decision, however, the agency found that there was insufficient evidence to support complainant's assertion that he contacted the former Deputy EEO Officer (retired) to initiate the EEO complaint process. Specifically, the agency claimed that according to the former Deputy EEO Officer's caseload status report, complainant's name is not listed as having requested informal complaint counseling or having a claim pending at that time.<2> Furthermore, the agency stated that as a result of a December 22, 1997 e-mail message, complainant was aware of the person to contact to initiate the EEO process. Thus, the agency found complainant's January 22, 1998 contact with the EEO Counselor to be beyond the forty-five-day time limit for timely counselor contact. The agency dismissed the other matters in complainant's complaint on the grounds that they were not like or related to the PARS issue, and on the grounds of untimely EEO Counselor contact. The record contains an e-mail message dated December 22, 1997, which advised agency personnel to contact the Concord EEO Counselor in order to initiate an EEO complaint. The record also contains a June 17, 1998 e-mail message from complainant to the Concord EEO Counselor, in which complainant admits that he received the December 22, 1997 e-mail message regarding EEO counselor contact. Also included in the June 17, 1998 e-mail message is a statement by complainant that he contacted the previous Deputy EEO Officer on November 17, 1997, to complain about his PARS rating and indicated that he wanted to file 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 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. With regard to complainant's contention that he initiated contact with the former Deputy EEO Director on November 17, 1998, 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 his EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the former Deputy EEO Director, a person who can be considered logically connected to the EEO process in order to complain of his PARS rating. We note, however, that there is no evidence of record whether complainant raised allegations of discrimination with the former Deputy EEO Director, i.e., exhibited an intent to pursue his EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision regarding claim (1) and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. With regard to the agency's dismissal of the remainder of the issues in complainant's complaint on the grounds that they were not like or related to the PARS issue, we find that the agency erred in its decision. The record reveals that in his formal complaint, complainant stated that he was subjected to continuing acts of hostile work environment harassment from 1994 through 1997. Attached to his formal complaint, complainant listed a series of alleged incidents of hostile work environment harassment starting in March 1995 and concluding with the November 17, 1997 performance appraisal. In order to avoid fragmentation of complainant's complaint, we find that the specific incidents of harassment listed in his formal complaint should be viewed as one claim of hostile work environment harassment. Thus, we find that the various acts stated in issue (2) are like or related to the PARS issue, since they are all incidents of alleged hostile work environment harassment. Final Decision: Accordingly, the agency's decision to dismiss the complaint was improper and is hereby REVERSED.	Vernon Clevenger v. Department of the Navy 01985794 February 29, 2000 Vernon Clevenger, ) Complainant, ) ) v. ) Appeal No. 01985794 Richard J. Danzig, ) Agency No. 98-60701-009 Secretary, ) Department of the Navy, ) Agency. ) ____________________________________) DECISION On July 17, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) received by him on June 21, 1998, pertaining to 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. , 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> In his complaint, complainant alleged that he was subjected to discrimination on the bases of age (DOB 2/10/44), physical disability (HIV positive), and in reprisal for prior EEO activity when: Complainant received his Level III Performance Appraisal Rating (PARS) of November 17, 1997; and Complainant was subjected to acts of a hostile work environment from 1994 through 1997. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the agency noted that the last incident of alleged discrimination occurred on November 17, 1997, and complainant did not contact an EEO Counselor until January 22, 1998, twenty days beyond the applicable forty-five day time limit. In the March 21, 1998 counselor's report, the EEO Counselor noted that complainant stated that he contacted the former Deputy EEO Officer on November 17, 1997, and expressed a desire to file a complaint. In its decision, however, the agency found that there was insufficient evidence to support complainant's assertion that he contacted the former Deputy EEO Officer (retired) to initiate the EEO complaint process. Specifically, the agency claimed that according to the former Deputy EEO Officer's caseload status report, complainant's name is not listed as having requested informal complaint counseling or having a claim pending at that time.<2> Furthermore, the agency stated that as a result of a December 22, 1997 e-mail message, complainant was aware of the person to contact to initiate the EEO process. Thus, the agency found complainant's January 22, 1998 contact with the EEO Counselor to be beyond the forty-five-day time limit for timely counselor contact. The agency dismissed the other matters in complainant's complaint on the grounds that they were not like or related to the PARS issue, and on the grounds of untimely EEO Counselor contact. The record contains an e-mail message dated December 22, 1997, which advised agency personnel to contact the Concord EEO Counselor in order to initiate an EEO complaint. The record also contains a June 17, 1998 e-mail message from complainant to the Concord EEO Counselor, in which complainant admits that he received the December 22, 1997 e-mail message regarding EEO counselor contact. Also included in the June 17, 1998 e-mail message is a statement by complainant that he contacted the previous Deputy EEO Officer on November 17, 1997, to complain about his PARS rating and indicated that he wanted to file 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 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. With regard to complainant's contention that he initiated contact with the former Deputy EEO Director on November 17, 1998, 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 his EEO rights. Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990). In the present case, complainant contacted the former Deputy EEO Director, a person who can be considered logically connected to the EEO process in order to complain of his PARS rating. We note, however, that there is no evidence of record whether complainant raised allegations of discrimination with the former Deputy EEO Director, i.e., exhibited an intent to pursue his EEO rights. For the foregoing reasons, the Commission hereby VACATES the final agency decision regarding claim (1) and REMANDS this matter for further processing in accordance with the Commission's ORDER set forth below. With regard to the agency's dismissal of the remainder of the issues in complainant's complaint on the grounds that they were not like or related to the PARS issue, we find that the agency erred in its decision. The record reveals that in his formal complaint, complainant stated that he was subjected to continuing acts of hostile work environment harassment from 1994 through 1997. Attached to his formal complaint, complainant listed a series of alleged incidents of hostile work environment harassment starting in March 1995 and concluding with the November 17, 1997 performance appraisal. In order to avoid fragmentation of complainant's complaint, we find that the specific incidents of harassment listed in his formal complaint should be viewed as one claim of hostile work environment harassment. Thus, we find that the various acts stated in issue (2) are like or related to the PARS issue, since they are all incidents of alleged hostile work environment harassment. Accordingly, the agency's decision to dismiss the complaint was improper and is hereby REVERSED. The complaint is hereby REMANDED for processing in accordance with the Order below. ORDER The agency is ORDERED to take the following actions: Conduct a supplemental investigation regarding complainant's November 17, 1997 contact with the former Deputy EEO Director. The agency shall obtain a statement from the former Deputy EEO Director regarding the November 17, 1997 contact indicating whether complainant raised an allegation of discrimination and/or exhibited an intent to pursue his EEO rights; a statement from complainant regarding his contact with the former Deputy EEO Director indicating whether he raised an allegation of discrimination and/or exhibited an intent to pursue his EEO rights; and any other relevant evidence regarding the November 17, 1997 contact between complainant and the former Deputy EEO Director. 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: February 29, 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. 2The record does not contain a statement from the former Deputy EEO Director nor does it contain a copy of his caseload status report for the relevant time period.	[ "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...	[ -0.08656567335128784, 0.08168915659189224, -0.0062973289750516415, -0.025128019973635674, 0.03481198102235794, 0.09649228304624557, 0.0010251834755763412, 0.07482146471738815, -0.0682719498872757, 0.012847783043980598, 0.008742398582398891, 0.007338448893278837, 0.03090272657573223, 0.0091...
78	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520180494.pdf	0520180494.pdf	PDF	application/pdf	23,347	Mui P.,1 Complainant, v. Robert Wilkie , Secretary, Department of Veterans Affairs, Agency.	May 31, 2018	Appeal Number: 0120181261 Background: At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, at the Agency’s Member Services facility in Topeka, Kansas. Complainant contacted an EEO Counselor (EEO Counselor 1) on August 16, 2017. According to the EEO Counselor’s report, Complainant alleged she was subjected to discrimination based on sex and age regarding : (1) pay and allowances - Equal Pay Act violation when on July 10, 2016, she discovered she was paid less than Comparative 1, who was hired as a GS -12; (2) assignment of duties when in March 2017, the Practice Improvement Manager began removing Complainant’s duties ; (3) training when in January 2017, the Process Improvement Manager denied Complainant’s request for Lean Six Black Belt Training ; (4) promotion/nonselection for the GS - 12 Process Improvement Coordinator position; and (5) lack of position description when Complainant was on the incorrect position description beginning in late April 2016. Subsequently, Complainant filed a formal comp laint on December 5, 2017, alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when: since July 10, 2016, to the present day, “[Complainant ] and a young male coworker have the exact same job duties and performance standards. However he is a GS 12. I have been told they would get it fixed since August 2016. A desk audit was performed and the conclusion was that because I was not a black belt I didn’t qualify as a 12. However the coworker has a lower level belt than I do.” Among the relief request for her complaint, Complainant requested a grade increase back to J uly 10, 2016, and back pay to that date. After receiving her formal complaint, the EEO Counselor assigned to her complaint (EEO Counselor 2) contacted C omplainant regarding the timeliness of her complaint. In a response dated December 15, 2017, Complainant indicated that she was withdrawing her claim regarding the assignment of duties and the claim regarding promotio n/nonselection. Regarding the timelin ess of her Equal Pay Act violation, Complainant stated that since the time Comparative 1 was hired on July 10, 2016, and forward, she has been doing work at a higher level, has the same assignments as Comparative 1, and had a higher belt then he does ; howe ver, she was paid less than him. Complainant stated she was giving the Agency time to resolve this issue. Regarding the timeliness of her claim about training, Complainant stated that she did not realize this was a separate issue from the Equal Pay Act v iolation. She explained that she was again giving the Agency time to correct . Regarding the timeliness of her position description claim, C omplainant stated , “Again this is part of the equal pay act violation.” The Agency issued a final decision on Complainant’s complaint on February 5, 2018. The Agency defined Complainant’s complaint as alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when : (1) beginning in April 2016, the Practice Improvement Manager failed to provide Complainant a position description when Complainant was reassigned to the Process Improvement Office; (2) beginning on August 15, 2016, the Practice Improvement Manager and the Director failed to compensate and/or promote Complainant to the GS-12 level, as her similarly situated male coworker (Comparative 1) ; and (3) on January 16, 2017, the Practice Improvement Manager denied Complainant’s request to attend “Lean Six Black Belt Training.” The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 2 The Agency noted that d uring the initial counseling process, Complainant raised two additi onal claims regarding assignment of duties and promotion/nonselection, which she subsequently withdrew. The Agency determined the most recent alleged discrimination occurred on January 16, 2017, when the Practice Improvement Manager denied Complainant’s request for training. The Agency noted Complainant contacted an EEO Counselor approximately seven months after that date. The Agency noted Complainant had filed three previous EEO complaints and thus had actual knowledge of the time requirement for timely initiating EEO Counselor contact. The Agency also dismissed claim (2) on alternative grounds. The Agency noted tha t Complainant filed a prior informal EEO complaint on April 27, 2017, raising a claim that on May 5, 2017, the Director violated the Equal P ay Act when Complainant was denied the same compensation and/or a promotion to the GS -12 level, as a similarly situated male coworker, Comparative 1. The Agency noted that in an email to the EEO Counselor on May 15, 2017, Complainant requested to withdraw the stated “complaint in full.” T he Agency determined that based upon Complainant’s request to withdraw the informal complaint in full, on May 15, 2017, the office closed the informal complaint. The Agency found the claim raised in Complainant’s complaint was the same claim raised in her prior informal complaint, under Case No. 2003- 0702- 2017102942. The Agency noted that a complainant who receives counseling on an allegation, but does not go forward with a formal complaint, is deemed to have abandoned the claim and consequently, cannot r aise it in another complaint. Thus, the Agency dismissed claim (2). Complainant appealed the Agency’s decision to the Commission. On appeal, Complainant noted that her prior informal complaint was dismissed based on guidance from EEO Counselor 1 who was assigned to the case. Complainant stated that during counseling, the Director offered to have a desk audit performed and he was confident that this would rectify the situation. Complainant noted that EEO Counselor 1 advised that she co uld refile the cla im if actions were not taken. Complainant explained the desk audit determined she did not qualify for a GS -12 position. Complainant noted that Comparative 1 had been in a GS -12 position since July 10, 2016. She noted that they were both employed on the continuous process improvement office; however, Comparative 1 was a GS -12 while she wa s a GS -11. Complainant stated their job s were identical and their duties were the same, while she had greater responsibility than Comparative 1 due to her higher -level L ean S ix Sigma belt level. In our previous decision, the Commission affirmed the Agency’s dismissal of Complainant’s complaint for untimely EEO Counselor contact. The Commission noted the last alleged discriminatory event occurred on January 17, 2017, but Complainant did not initiate contact with an EEO Counselor until August 16, 2017, which is beyond the 45- day limitation period. The 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 s ubstantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, at the Agency’s Member Services facility in Topeka, Kansas. Complainant contacted an EEO Counselor (EEO Counselor 1) on August 16, 2017. According to the EEO Counselor’s report, Complainant alleged she was subjected to discrimination based on sex and age regarding : (1) pay and allowances - Equal Pay Act violation when on July 10, 2016, she discovered she was paid less than Comparative 1, who was hired as a GS -12; (2) assignment of duties when in March 2017, the Practice Improvement Manager began removing Complainant’s duties ; (3) training when in January 2017, the Process Improvement Manager denied Complainant’s request for Lean Six Black Belt Training ; (4) promotion/nonselection for the GS - 12 Process Improvement Coordinator position; and (5) lack of position description when Complainant was on the incorrect position description beginning in late April 2016. Subsequently, Complainant filed a formal comp laint on December 5, 2017, alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when: since July 10, 2016, to the present day, “[Complainant ] and a young male coworker have the exact same job duties and performance standards. However he is a GS 12. I have been told they would get it fixed since August 2016. A desk audit was performed and the	Mui P.,1 Complainant, v. Robert Wilkie , Secretary, Department of Veterans Affairs, Agency. Request No. 0520180494 Appeal No. 0120181261 Agency No. 200407022017104621 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181261 (May 31, 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 s ubstantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, at the Agency’s Member Services facility in Topeka, Kansas. Complainant contacted an EEO Counselor (EEO Counselor 1) on August 16, 2017. According to the EEO Counselor’s report, Complainant alleged she was subjected to discrimination based on sex and age regarding : (1) pay and allowances - Equal Pay Act violation when on July 10, 2016, she discovered she was paid less than Comparative 1, who was hired as a GS -12; (2) assignment of duties when in March 2017, the Practice Improvement Manager began removing Complainant’s duties ; (3) training when in January 2017, the Process Improvement Manager denied Complainant’s request for Lean Six Black Belt Training ; (4) promotion/nonselection for the GS - 12 Process Improvement Coordinator position; and (5) lack of position description when Complainant was on the incorrect position description beginning in late April 2016. Subsequently, Complainant filed a formal comp laint on December 5, 2017, alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when: since July 10, 2016, to the present day, “[Complainant ] and a young male coworker have the exact same job duties and performance standards. However he is a GS 12. I have been told they would get it fixed since August 2016. A desk audit was performed and the conclusion was that because I was not a black belt I didn’t qualify as a 12. However the coworker has a lower level belt than I do.” Among the relief request for her complaint, Complainant requested a grade increase back to J uly 10, 2016, and back pay to that date. After receiving her formal complaint, the EEO Counselor assigned to her complaint (EEO Counselor 2) contacted C omplainant regarding the timeliness of her complaint. In a response dated December 15, 2017, Complainant indicated that she was withdrawing her claim regarding the assignment of duties and the claim regarding promotio n/nonselection. Regarding the timelin ess of her Equal Pay Act violation, Complainant stated that since the time Comparative 1 was hired on July 10, 2016, and forward, she has been doing work at a higher level, has the same assignments as Comparative 1, and had a higher belt then he does ; howe ver, she was paid less than him. Complainant stated she was giving the Agency time to resolve this issue. Regarding the timeliness of her claim about training, Complainant stated that she did not realize this was a separate issue from the Equal Pay Act v iolation. She explained that she was again giving the Agency time to correct . Regarding the timeliness of her position description claim, C omplainant stated , “Again this is part of the equal pay act violation.” The Agency issued a final decision on Complainant’s complaint on February 5, 2018. The Agency defined Complainant’s complaint as alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when : (1) beginning in April 2016, the Practice Improvement Manager failed to provide Complainant a position description when Complainant was reassigned to the Process Improvement Office; (2) beginning on August 15, 2016, the Practice Improvement Manager and the Director failed to compensate and/or promote Complainant to the GS-12 level, as her similarly situated male coworker (Comparative 1) ; and (3) on January 16, 2017, the Practice Improvement Manager denied Complainant’s request to attend “Lean Six Black Belt Training.” The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 2 The Agency noted that d uring the initial counseling process, Complainant raised two additi onal claims regarding assignment of duties and promotion/nonselection, which she subsequently withdrew. The Agency determined the most recent alleged discrimination occurred on January 16, 2017, when the Practice Improvement Manager denied Complainant’s request for training. The Agency noted Complainant contacted an EEO Counselor approximately seven months after that date. The Agency noted Complainant had filed three previous EEO complaints and thus had actual knowledge of the time requirement for timely initiating EEO Counselor contact. The Agency also dismissed claim (2) on alternative grounds. The Agency noted tha t Complainant filed a prior informal EEO complaint on April 27, 2017, raising a claim that on May 5, 2017, the Director violated the Equal P ay Act when Complainant was denied the same compensation and/or a promotion to the GS -12 level, as a similarly situated male coworker, Comparative 1. The Agency noted that in an email to the EEO Counselor on May 15, 2017, Complainant requested to withdraw the stated “complaint in full.” T he Agency determined that based upon Complainant’s request to withdraw the informal complaint in full, on May 15, 2017, the office closed the informal complaint. The Agency found the claim raised in Complainant’s complaint was the same claim raised in her prior informal complaint, under Case No. 2003- 0702- 2017102942. The Agency noted that a complainant who receives counseling on an allegation, but does not go forward with a formal complaint, is deemed to have abandoned the claim and consequently, cannot r aise it in another complaint. Thus, the Agency dismissed claim (2). Complainant appealed the Agency’s decision to the Commission. On appeal, Complainant noted that her prior informal complaint was dismissed based on guidance from EEO Counselor 1 who was assigned to the case. Complainant stated that during counseling, the Director offered to have a desk audit performed and he was confident that this would rectify the situation. Complainant noted that EEO Counselor 1 advised that she co uld refile the cla im if actions were not taken. Complainant explained the desk audit determined she did not qualify for a GS -12 position. Complainant noted that Comparative 1 had been in a GS -12 position since July 10, 2016. She noted that they were both employed on the continuous process improvement office; however, Comparative 1 was a GS -12 while she wa s a GS -11. Complainant stated their job s were identical and their duties were the same, while she had greater responsibility than Comparative 1 due to her higher -level L ean S ix Sigma belt level. In our previous decision, the Commission affirmed the Agency’s dismissal of Complainant’s complaint for untimely EEO Counselor contact. The Commission noted the last alleged discriminatory event occurred on January 17, 2017, but Complainant did not initiate contact with an EEO Counselor until August 16, 2017, which is beyond the 45- day limitation period. The decision found Complainant did not present persuasive arguments or evidence warranting an extensio n of the time limit for initiating EEO Counselor contact. Thereafter, Complainant filed the instant request for reconsideration. Complainant contends that the discrimination she has suffered has been ongoing since July 2016, and will continue with every paycheck she receives. Complainant notes that the requirements for her position and the position held by Comparative 1 are identical and that she is held to higher expectations and repeatedly performs work at a higher level than Comparative 1. Complainant notes that she, Coworker A (female)3, and Comparative 1 perform the same duties; however, Comparative 1 is paid at a substantially higher rate than they are paid. Complainant notes that she continually advised management about the equal pay vi olation. Complainant acknowledges that she filed an informal EEO complaint regarding the equal pay violation and was assigned EEO Counselor 1. Complainant notes that the Director offered to perform a desk audit of her position and EEO Counselor 1 told he r she thought he was sincere. Complainant states that EEO Counselor 1 advised she could reopen the case if the matter did not get resolved. Complainant notes the desk audit did not come back in her favor and she then r efiled her EEO claim. She notes thereafter EEO Counselor 2 was assigned to her complaint . Complainant reiterates that her complaint involves ongoing discrimination and occurs every pay day. She states EEO Counselor 2 fragmented her timeline of events and tried to make them separate issues . In response to Complainant’s request for reconsideration, the Agency argues the Commission properly affirmed its dismissal for untimely EEO Counselor contact. The Agency states that granting Complainant’s request would place an undue burden on the Agency, regarding investigating her claims from April 2016, August 2016, and January 2017. The Agency argues that Complainant’s complaint does not meet the standards of timeliness to be considered. The Agency notes , however, “considering the seriousness and duration of the allegations within [Complainant’s] complaint, the Agency does encourage [Complainant] to file a timely formal complaint with an EEO Counselor if [she] believes herself to be currently subject to illegal discrimination or for any instance of illegal discrimination of whic h she is aware, having occur r[ed] within the preceding 45 days.” ANALYSIS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel act ion, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” st andard (as opposed to a “supportive facts” standard) to de termine when the 45- day limitation period is triggered. See Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Upon review, we find Complainant failed to show that our prior decision affirming the dismissal of claims (1) and (3) for untimely E EO Counselor contact was clearly erroneous. However, regarding claim (2), w e find that Complainant’s EEO Counselor contact was timely under the Lilly 3 We take judicial notice th at Coworker A has also filed an EEO complaint under Case No. 200I - 0702- 2017105372 alleging , among other claims , that she was subjected to discrimination based on race and sex when since March 2016 and continuing s he was paid at a lower rate than Comparative 1, Program Analyst, GS -12 and since March 2016 and continuing she has been performing the standards of a Program Analyst, GS -12. The Agency accepted Coworker A’s claim and the case is currently pending a hearing before an EEOC Administrative Judge. Ledbetter Fair Pay Act of 2009. 42 U.S.C. § 2000e -5(e)(3)(A). The Ledbetter Act applies to all claims o f discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that: ...an unlawful empl oyment 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 othe r 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. We find that in claim (2), Complainant alleged that she continued to be affected by the application of the discriminatory compensation decision when since July 10, 2016, Complainant wa s paid at a lower rate than a similarly situated younger male employee. Therefore, she asserts that she was still receiving allegedly discriminatory paychecks during that period up to and including the 45 - day period prior to her EEO Counselor contact on A ugust 16, 2017. Moreover, we note that t o the extent claims (1) and (3) constitute background information surrounding Complainant’s compensation claim they should be considered accordingly. Thus, we find that Complainant’s counselor contact concerning the compensation claim was timely made and the Agency’s dismissal of it is reversed. Moreover, we reverse the Agency’s dismissal of claim (2) as having stated the same claim that was raised in a prior EEO complaint. T he record reveals that Complainant filed a prior informal EEO complaint on April 27, 2017, raising a claim that on May 5, 2017, the Director violated the Equal Pay Act when Complainant was denied the same compensation and/or a promotion to the GS-12 level, as a similarly situated male cowor ker, Comparative 1. The Agency explained that based upon Complainant’s request to withdraw the informal complaint in full, on May 15, 2017, the office closed the informal complaint. The Agency found the claim raised in Complainant’s present complaint was the same claim raised in he r prior informal complaint. The Agency noted that a complainant who receives counseling on an allegation, but does not go forward with a formal complaint, is deemed to have abandoned the claim and consequently, ca nnot raise it in another complaint. Thus, the Agency dismissed claim (2). In past cases, the Commission has found that where a complainant knowingly and voluntarily withdraws her complaint, the Commission considers the matter to have been abandoned. See Complainant v. Dep’t of Commerce , EEOC Appeal No. 0120092893 (Sep. 28, 2011) (citing Complainant v. Dep’t of Transp. , EEOC Request No. 05930805 (Feb. 25, 1994)). Further, Complainant may not request reinstatement of an informal complaint. See id. (citing Allen v. Dep’t of Defense , EEOC Request No. 05940168 (May 25, 1995)). Once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a complaint on the same issue. Id. On appeal, Complainant stated that Case No. 2003- 0702- 201402381 was withdrawn based on guidance from EEO Counselor 1 who was assigned to the case. Specifically, Complainant noted that EEO Counselor 1 advised that she could refile the claim if actions we re not taken in accordance with the desk audit of her position. We note the record contains a September 13, 2017 email from Complainant to EEO Counselor 1 in which Complainant noted “When I chose to withdraw the complaint it was because [the Director] sai d that he was working on it. I asked you specifically if I could refile the claim if they didn’t get it fixed and you informed me I could.” Complainant stated she was now being told the complaint would be dismissed and requested clarification from EEO Co unselor 1. In response, by email dated September 13, 2017, EEO Counselor 1 told Complainant to give her a call. We note in response to Complainant’s appeal, the Agency did not refute Complainant’s contention that EEO Counselor 1 misled her into withdrawi ng her informal complaint. Furthermore, there is no statement in the record from EEO Counselor 1 refuting Complainant’s assertions that she was misled. Thus, we find Complainant did not knowingly and voluntarily withdraw her prior informal complaint. As a result, we determine the Agency improperly dismissed claim (2) on the grounds it stated the same claim that was raised in a prior EEO complaint. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds the decision in EEOC Appeal No. 0120181261 is MODIFIED . The Age ncy’s final decision dismissing claims (1) and (3) is AFFIRMED and the decision dismissing claim (2) is REVERSED . There is no further right of administrative appeal on the decision of the Commis sion on this request. ORDER (E0618) 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, unl ess 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. As provided in the statement entit led "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of right s, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a final agency decision , or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) 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 Agen cy 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 Age ncy 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 ha s 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 (Q0610) 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 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 repr esent 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 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 December 20, 2018 Date	[ "Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)", "Complainant v. Dep’t of Commerce , EEOC Appeal No. 0120092893 (Sep. 28, 2011)", "Complainant v. Dep’t of Transp. , EEOC Request No. 05930805 (Feb. 25, 1994)", "Allen v. Dep’t of Defense , EEOC Request No. 05940168 (May 25, 1995)", "...	[ -0.054220836609601974, 0.08354570716619492, 0.008968189358711243, -0.008642802946269512, 0.029618998989462852, -0.0013838926097378135, -0.0013503169175237417, -0.005018564406782389, 0.027989309281110764, 0.020172806456685066, 0.015808744356036186, -0.002717453520745039, -0.05991280451416969,...
79	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120141071.r.txt	0120141071.r.txt	TXT	text/plain	11,855		December 20, 2013	Appeal Number: 0120141071 Background: During the period at issue, Complainant worked as an Office Automation Clerk at the Agency's Distribution Susquehanna in New Cumberland, Pennsylvania. The record reflects that Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint on December 6, 2013. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of color and disability when: on February 20, 2013, his supervisor asked him to roll his chair to the door when the doorbell rang, which exacerbated his medical condition. On December 20, 2013, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred on February 20, 2013, but that Complainant did not initiate contact with an EEO Counselor until August 25, 2013, which the Agency found to be beyond the forty-five limitation period. Further, the Agency noted in his formal complaint, Complainant stated that the most recent discriminatory event as February 20, 2013 but did not indicate the date when he first initiated EEO Counselor contact. The Agency further noted that in the EEO Counselor's Report, the EEO Counselor stated that Complainant initiated EEO contact on August 25, 2013. The Agency also noted that when the EEO Counselor asked Complainant why it took him more than 45 days to initiate EEO contact, Complainant explained that he was off work due to an on-the-job injury during the July and August 2013 time period. Complainant, on appeal, argues that the Agency erred in dismissing the formal complaint on the grounds of untimely EEO Counselor contact. For instance, Complainant stated that he initiated EEO Counselor contact on March 5, 2013, not August 25, 2013. In support of its assertions, Complainant submitted a copy of his union representative's email dated March 4, 2013, to several Agency officials. Therein, the representative stated "Tuesday March 5, 2013 I have 0700 and 0900 hrs mediations. I will commit to the meeting for [Complainant], just in case I run a little late I am giving advance notification of prior scheduled meetings." The record reflects that at the bottom of the representative's March 4, 2013 email, Complainant wrote the following statement "this is the e-mail we where to have the meeting with EEO on March-5-2013 with [Agency official] management canceled meeting. The initial contact date with EEO staff 8-25-13 is not right at all this e-mail proves me right." The instant appeal followed. Legal Analysis: 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 personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. § 1614.105(a)(2) mandates dismissal of complaints for untimeliness. 29 C.F.R. § 1614.107(a)(2). We find that the Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant initiated EEO contact on August 25, 2013. Specifically, we note that Complainant, on appeal, states that he initiated EEO contact on March 5, 2013, not August 25, 2013. We also note that the record contains a copy of the EEO Specialist's email correspondence dated January 14, 2014 to an Agency official. Therein, the EEO Specialist stated that Complainant "did make EEO contact on February 27, 2013" concerning his claim. Moreover, we find nothing in the record reflecting a finding that Complainant may have abandoned his claim when making these initial EEO contacts in late February or early March 2013, and that it was only resurrected when he again contacted an EEO Counselor in August 2013. The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED 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.	Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120141071 Agency No. DLAN-13-0297 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 20, 2013, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Office Automation Clerk at the Agency's Distribution Susquehanna in New Cumberland, Pennsylvania. The record reflects that Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint on December 6, 2013. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of color and disability when: on February 20, 2013, his supervisor asked him to roll his chair to the door when the doorbell rang, which exacerbated his medical condition. On December 20, 2013, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred on February 20, 2013, but that Complainant did not initiate contact with an EEO Counselor until August 25, 2013, which the Agency found to be beyond the forty-five limitation period. Further, the Agency noted in his formal complaint, Complainant stated that the most recent discriminatory event as February 20, 2013 but did not indicate the date when he first initiated EEO Counselor contact. The Agency further noted that in the EEO Counselor's Report, the EEO Counselor stated that Complainant initiated EEO contact on August 25, 2013. The Agency also noted that when the EEO Counselor asked Complainant why it took him more than 45 days to initiate EEO contact, Complainant explained that he was off work due to an on-the-job injury during the July and August 2013 time period. Complainant, on appeal, argues that the Agency erred in dismissing the formal complaint on the grounds of untimely EEO Counselor contact. For instance, Complainant stated that he initiated EEO Counselor contact on March 5, 2013, not August 25, 2013. In support of its assertions, Complainant submitted a copy of his union representative's email dated March 4, 2013, to several Agency officials. Therein, the representative stated "Tuesday March 5, 2013 I have 0700 and 0900 hrs mediations. I will commit to the meeting for [Complainant], just in case I run a little late I am giving advance notification of prior scheduled meetings." The record reflects that at the bottom of the representative's March 4, 2013 email, Complainant wrote the following statement "this is the e-mail we where to have the meeting with EEO on March-5-2013 with [Agency official] management canceled meeting. The initial contact date with EEO staff 8-25-13 is not right at all this e-mail proves me right." The instant appeal followed. 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 personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. § 1614.105(a)(2) mandates dismissal of complaints for untimeliness. 29 C.F.R. § 1614.107(a)(2). We find that the Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant initiated EEO contact on August 25, 2013. Specifically, we note that Complainant, on appeal, states that he initiated EEO contact on March 5, 2013, not August 25, 2013. We also note that the record contains a copy of the EEO Specialist's email correspondence dated January 14, 2014 to an Agency official. Therein, the EEO Specialist stated that Complainant "did make EEO contact on February 27, 2013" concerning his claim. Moreover, we find nothing in the record reflecting a finding that Complainant may have abandoned his claim when making these initial EEO contacts in late February or early March 2013, and that it was only resurrected when he again contacted an EEO Counselor in August 2013. The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED 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 23, 2014 __________________ Date	[ "29 C.F.R. § 1614.107(a)", "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. § 2000e", "29 U.S.C. § 791", "29 U.S.C. §§ 791" ]	[ -0.07588837295770645, 0.10145346075296402, -0.022032372653484344, 0.03123379498720169, -0.002781528513878584, 0.05799134075641632, 0.0813356414437294, -0.004854697268456221, -0.040769122540950775, 0.03681294992566109, 0.0375162772834301, 0.03020765632390976, 0.021730169653892517, 0.0150209...
80	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05a40515.txt	05a40515.txt	TXT	text/plain	12,609	Frankie E. Nichols v. Department of Veterans Affairs 05A40515 August 4, 2005 . Frankie E. Nichols, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.	August 4, 2005	Appeal Number: 01A30165 Case Facts: 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). 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(b), and it is the decision of the Commission to grant the request. On March 4, 2002, complainant initiated contact with the agency EEO office. Complainant claimed that she was the victim of unlawful employment discrimination on the bases of race and color with respect to her duty hours and reinstatement as Food Service Worker. Informal efforts to resolve complainant's concerns were unsuccessful. On May 22, 2002, complainant filed a formal complaint. In its final decision, dated August 5, 2002, the agency determined that complainant's complaint was comprised of the following two claims: on or about February 20, 2002, complainant requested that her tour be changed to the evening shift. Management agreed to allow her to work late for two days per week as long as she would not be in the same kitchen as her husband. Complainant is aware that a team of mother and daughter works in the same kitchen; and on December 20, 1998, complainant was given an appointment as a part-time, Food Service Worker, WG-2, although she was a WG-4, Food Service Worker, when she resigned on August 21, 1998. Thereafter, on June 14, 2002, complainant amended her complaint to include an additional claim of reprisal concerning time and attendance. In her new claim, complainant claimed: (3) From May 20, 2002 through May 24, 2002, complainant was charged Absent Without Leave (AWOL). On August 5, 2002, the agency issued a decision dismissing claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency accepted claims (1) and (3) for investigation. Regarding claim (2), the agency determined that complainant initiated contact with the agency EEO office on March 4, 2002, concerning the December 20, 1998 appointment, which was well beyond the forty-five-day time limitation. The agency acknowledged that complainant stated to the EEO Counselor that she "did not know the steps necessary to file an EEO complaint. The agency determined that complainant was nevertheless aware, or should have been aware, of the EEO complaint process. Specifically, the agency stated that complainant received an Employee Handbook at her reinstatement that clearly explained the complaint process and time limitations for EEO contact, as well as the Medical Center's discrimination complaint procedures (in the form of Memorandum 00-29, attachment A), which described an employee's timely contact with an EEO Counselor. Finally, the agency stated that on June 5, 2001, complainant attended a training session entitled EEO Process/Understanding the EEO Process. On September 4, 2002, complainant withdrew claims (1) and (3), thereby rendering claim (2) ripe for adjudication. On September 29, 2002, complainant filed an appeal from the agency's dismissal of claim (2). On appeal, complainant argued that she was not informed of the proper EEO process when I originally decided to file my complaint. Complainant also argued that she understood that the union was suppose[d] to resolve the wrongful act. Complainant also stated that she did not know what my options were, and that after performing some personal research about the EEO process, I began to pursue my case again hoping that the statute of limitations had not expired. In response to the appeal, the agency submitted a complaint file without comment, providing various employee handbooks, memoranda, and training materials. The agency's documents included a 1994 and 1998 copy of Memorandum 00-29; a 1998 sexual harassment policy statement memorandum; 1991 and 1998 copies of an Employee Handbook; and a training history summary and training materials related to a May 2001 class on Understanding the EEO Complaints Process. In the previous decision, the Commission reversed the agency's dismissal and remanded claim (2) to the agency for further processing. The Commission determined that complainant's belief that her union would look out for [her] best interests," was insufficient to waive the time limitation. However, the Commission determined that the agency failed to show that complainant had actual or constructive knowledge of the time limit for contacting an EEO Counselor. The previous decision noted that one of the handbooks submitted by the agency included an inaccurate time limit, and that it was unclear when complainant received the materials. Regarding the memoranda, the previous decision noted that one memorandum generally describing the agency's "EEO Policy" was issued in 1994, and that the 1998 memorandum covered only the issue of sexual harassment. Finally, the previous decision determined that while it appeared that complainant attended an EEO class on June 5, 2001, the copies of the training materials were illegible. In its request for reconsideration, the agency argues that it submitted ample documentation on appeal to establish that complainant knew or should have known of the forty-five-day limitation period. The agency states that although the Commission made reference to the 1998 memorandum on sexual harassment contained in the record, the agency also submitted a copy of the July 10, 1998 Medical Center Memorandum 00-29, complete with attachment A, which described the discrimination complaint process covered under all bases (not simply for sexual harassment), and in particular the forty-five-day limitation period for contacting an EEO Counselor. In its request, the agency also submits an affidavit from an EEO Specialist indicating complainant received Memorandum 00-29 with attachment A on December 21, 1998, as part of new employee orientation. Additionally, the agency states that it submitted on appeal copies of two Employee Handbooks. The agency acknowledges that although one Handbook made reference to the old thirty-day time limit for EEO Counselor contact, the other Handbook referred to the current forty-five-day time limitation. Finally, the agency states that the record also contained a copy of a December 22, 1998 Guide for Orientation of New Employees, wherein complainant acknowledged receipt of her 1998 Employee Handbook, on December 21, 1998. 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(b). 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(b), and it is the decision of the Commission to grant the request. On March 4, 2002, complainant initiated contact with the agency EEO office. Complainant claimed that she was the victim of unlawful employment discrimination on the bases of race and color with respect to her duty hours and reinstatement as Food Service Worker. Informal efforts to resolve complainant's concerns were unsuccessful. On May 22, 2002, complainant filed a formal complaint. In its final decision, dated August 5, 2002, the agency determined that complainant's complaint was comprised of the following two claims: on or about February 20, 2002, complainant requested that her tour be changed to the evening shift. Management agreed to allow her to work late for two days per week as long as she would not be in the same kitchen as her husband. Complainant is aware that a team of mother and daughter works in the same kitchen; and on December 20, 1998, complainant was given an appointment as a part-time, Food Service Worker, WG-2, although she was a WG-4, Food Service Worker, when she resigned on August 21, 1998. Thereafter, on June 14, 2002, complainant amended her complaint to include an additional claim of reprisal concerning time and attendance. In her new claim, complainant claimed: (3) From May 20, 2002 through May 24, 2002, complainant was charged Absent Without Leave (AWOL). On August 5, 2002, the agency issued a decision dismissing claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency accepted claims (1) and (3) for investigation. Regarding claim (2), the agency determined that complainant initiated contact with the agency EEO office on March 4, 2002, concerning the December 20, 1998 appointment, which was well beyond the forty-five-day time limitation. The agency acknowledged that complainant stated to the EEO Counselor that she "did not know the steps necessary to file an EEO complaint. The agency determined that complainant was nevertheless aware, or should have been aware, of the EEO complaint process. Specifically, the agency stated that complainant received an Employee Handbook at her reinstatement that clearly explained the complaint process and time limitations for EEO contact, as well as the Medical Center's discrimination complaint procedures (in the form of Memorandum 00-29, attachment A), which described an employee's timely contact with an EEO Counselor. Finally, the agency stated that on June 5, 2001, complainant attended a training session entitled EEO Process/Understanding the EEO Process. On September 4, 2002, complainant withdrew claims (1) and (3), thereby rendering claim (2) ripe for adjudication. On September 29, 2002, complainant filed an appeal from the agency's dismissal of claim (2). On appeal, complainant argued that she was not informed of the proper EEO process when I originally decided to file my complaint. Complainant also argued that she understood that the union was suppose[d] to resolve the wrongful act. Complainant also stated that she did not know what my options were, and that after performing some personal research about the EEO process, I began to pursue my case again hoping that the statute of limitations had not expired. In response to the appeal, the agency submitted a complaint file without comment, providing various employee handbooks, memoranda, and training materials. The agency's documents included a 1994 and 1998 copy of Memorandum 00-29; a 1998 sexual harassment policy statement memorandum; 1991 and 1998 copies of an Employee Handbook; and a training history summary and training materials related to a May 2001 class on Understanding the EEO Complaints Process. In the previous decision, the Commission reversed the agency's dismissal and remanded claim (2) to the agency for further processing. The Commission determined that complainant's belief that her union would look out for [her] best interests," was insufficient to waive the time limitation. However, the Commission determined that the agency failed to show that complainant had actual or constructive knowledge of the time limit for contacting an EEO Counselor. The previous decision noted that one of the handbooks submitted by the agency included an inaccurate time limit, and that it was unclear when complainant received the materials. Regarding the memoranda, the previous decision noted that one memorandum generally describing the agency's "EEO Policy" was issued in 1994, and that the 1998 memorandum covered only the issue of sexual harassment. Finally, the previous decision determined that while it appeared that complainant attended an EEO class on June 5, 2001, the copies of the training materials were illegible. In its request for reconsideration, the agency argues that it submitted ample documentation on appeal to establish that complainant knew or should have known of the forty-five-day limitation period. The agency states that although the Commission made reference to the 1998 memorandum on sexual harassment contained in the record, the agency also submitted a copy of the July 10, 1998 Medical Center Memorandum 00-29, complete with attachment A, which described the discrimination complaint process covered under all bases (not simply for sexual harassment), and in particular the forty-five-day limitation period for contacting an EEO Counselor. In its request, the agency also submits an affidavit from an EEO Specialist indicating complainant received Memorandum 00-29 with attachment A on December 21, 1998, as part of new employee orientation. Additionally, the agency states that it submitted on appeal copies of two Employee Handbooks. The agency acknowledges that although one Handbook made reference to the old thirty-day time limit for EEO Counselor contact, the other Handbook referred to the current forty-five-day time limitation. Finally, the agency states that the record also contained a copy of a December 22, 1998 Guide for Orientation of New Employees, wherein complainant acknowledged receipt of her 1998 Employee Handbook, on December 21, 1998. 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 present case, the record shows that complainant waited until March 4, 2002, to contact an EEO Counselor concerning her December 20, 1998 appointment as a part-time Food Service Worker, which is beyond the forty-five-day time limitation. When asked by the EEO Counselor to explain why she did not seek counseling during the forty-five-day time frame, complainant indicated that she "did not know the steps that [she] should have taken in order to file an EEO complaint." After a thorough review of the record, however, we find that the agency has shown that complainant was provided actual or constructive notice of the EEO process, specifically including the forty-five-day time limit, as part of her new employee orientation on December 21, 1998. The record reflects that in a signed statement stamped on her single page Guide for Orientation of New Employees dated December 21, 1998, complainant indicated that she received a copy of the [agency] Employee Handbook and understand that it is my responsibility to become thoroughly familiar with its contents. The accompanying Handbook contains information describing the informal complaint process, including the forty-five-day time limit for contacting a Counselor. Moreover, the record also contains a copy of Medical Center Memorandum 00-29 (July 10, 1998), attachment A, which articulates the agency's discrimination complaint procedures and expressly addresses the forty-five-day limitation period. Therefore, based on a review of the record, we find that complainant's March 4, 2002 EEO Counselor contact was untimely, and that complainant failed to provide sufficient justification for tolling or extending the time limit for contacting an EEO Counselor. Final Decision: Accordingly, the agency's properly dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2). After a review of the agency's request for reconsideration, 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(b), and it is the decision of the Commission to GRANT the agency's request. The decision of the Commission in Appeal No. 01A30165 is REVERSED, and the agency's final decision to dismiss claim (2) is AFFIRMED.	Frankie E. Nichols v. Department of Veterans Affairs 05A40515 August 4, 2005 . Frankie E. Nichols, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. Request No. 05A40515 Appeal No. 01A30165 Agency No. 200M-02-102075 GRANT On March 12, 2004, the Department of Veterans Affairs (agency) timely requested reconsideration of the decision in Frankie E. Nichols v. Department of Veterans Affairs, EEOC Appeal No. 01A30165 (February 12, 2004). 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). 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(b), and it is the decision of the Commission to grant the request. On March 4, 2002, complainant initiated contact with the agency EEO office. Complainant claimed that she was the victim of unlawful employment discrimination on the bases of race and color with respect to her duty hours and reinstatement as Food Service Worker. Informal efforts to resolve complainant's concerns were unsuccessful. On May 22, 2002, complainant filed a formal complaint. In its final decision, dated August 5, 2002, the agency determined that complainant's complaint was comprised of the following two claims: on or about February 20, 2002, complainant requested that her tour be changed to the evening shift. Management agreed to allow her to work late for two days per week as long as she would not be in the same kitchen as her husband. Complainant is aware that a team of mother and daughter works in the same kitchen; and on December 20, 1998, complainant was given an appointment as a part-time, Food Service Worker, WG-2, although she was a WG-4, Food Service Worker, when she resigned on August 21, 1998. Thereafter, on June 14, 2002, complainant amended her complaint to include an additional claim of reprisal concerning time and attendance. In her new claim, complainant claimed: (3) From May 20, 2002 through May 24, 2002, complainant was charged Absent Without Leave (AWOL). On August 5, 2002, the agency issued a decision dismissing claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency accepted claims (1) and (3) for investigation. Regarding claim (2), the agency determined that complainant initiated contact with the agency EEO office on March 4, 2002, concerning the December 20, 1998 appointment, which was well beyond the forty-five-day time limitation. The agency acknowledged that complainant stated to the EEO Counselor that she "did not know the steps necessary to file an EEO complaint. The agency determined that complainant was nevertheless aware, or should have been aware, of the EEO complaint process. Specifically, the agency stated that complainant received an Employee Handbook at her reinstatement that clearly explained the complaint process and time limitations for EEO contact, as well as the Medical Center's discrimination complaint procedures (in the form of Memorandum 00-29, attachment A), which described an employee's timely contact with an EEO Counselor. Finally, the agency stated that on June 5, 2001, complainant attended a training session entitled EEO Process/Understanding the EEO Process. On September 4, 2002, complainant withdrew claims (1) and (3), thereby rendering claim (2) ripe for adjudication. On September 29, 2002, complainant filed an appeal from the agency's dismissal of claim (2). On appeal, complainant argued that she was not informed of the proper EEO process when I originally decided to file my complaint. Complainant also argued that she understood that the union was suppose[d] to resolve the wrongful act. Complainant also stated that she did not know what my options were, and that after performing some personal research about the EEO process, I began to pursue my case again hoping that the statute of limitations had not expired. In response to the appeal, the agency submitted a complaint file without comment, providing various employee handbooks, memoranda, and training materials. The agency's documents included a 1994 and 1998 copy of Memorandum 00-29; a 1998 sexual harassment policy statement memorandum; 1991 and 1998 copies of an Employee Handbook; and a training history summary and training materials related to a May 2001 class on Understanding the EEO Complaints Process. In the previous decision, the Commission reversed the agency's dismissal and remanded claim (2) to the agency for further processing. The Commission determined that complainant's belief that her union would look out for [her] best interests," was insufficient to waive the time limitation. However, the Commission determined that the agency failed to show that complainant had actual or constructive knowledge of the time limit for contacting an EEO Counselor. The previous decision noted that one of the handbooks submitted by the agency included an inaccurate time limit, and that it was unclear when complainant received the materials. Regarding the memoranda, the previous decision noted that one memorandum generally describing the agency's "EEO Policy" was issued in 1994, and that the 1998 memorandum covered only the issue of sexual harassment. Finally, the previous decision determined that while it appeared that complainant attended an EEO class on June 5, 2001, the copies of the training materials were illegible. In its request for reconsideration, the agency argues that it submitted ample documentation on appeal to establish that complainant knew or should have known of the forty-five-day limitation period. The agency states that although the Commission made reference to the 1998 memorandum on sexual harassment contained in the record, the agency also submitted a copy of the July 10, 1998 Medical Center Memorandum 00-29, complete with attachment A, which described the discrimination complaint process covered under all bases (not simply for sexual harassment), and in particular the forty-five-day limitation period for contacting an EEO Counselor. In its request, the agency also submits an affidavit from an EEO Specialist indicating complainant received Memorandum 00-29 with attachment A on December 21, 1998, as part of new employee orientation. Additionally, the agency states that it submitted on appeal copies of two Employee Handbooks. The agency acknowledges that although one Handbook made reference to the old thirty-day time limit for EEO Counselor contact, the other Handbook referred to the current forty-five-day time limitation. Finally, the agency states that the record also contained a copy of a December 22, 1998 Guide for Orientation of New Employees, wherein complainant acknowledged receipt of her 1998 Employee Handbook, on December 21, 1998. 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 present case, the record shows that complainant waited until March 4, 2002, to contact an EEO Counselor concerning her December 20, 1998 appointment as a part-time Food Service Worker, which is beyond the forty-five-day time limitation. When asked by the EEO Counselor to explain why she did not seek counseling during the forty-five-day time frame, complainant indicated that she "did not know the steps that [she] should have taken in order to file an EEO complaint." After a thorough review of the record, however, we find that the agency has shown that complainant was provided actual or constructive notice of the EEO process, specifically including the forty-five-day time limit, as part of her new employee orientation on December 21, 1998. The record reflects that in a signed statement stamped on her single page Guide for Orientation of New Employees dated December 21, 1998, complainant indicated that she received a copy of the [agency] Employee Handbook and understand that it is my responsibility to become thoroughly familiar with its contents. The accompanying Handbook contains information describing the informal complaint process, including the forty-five-day time limit for contacting a Counselor. Moreover, the record also contains a copy of Medical Center Memorandum 00-29 (July 10, 1998), attachment A, which articulates the agency's discrimination complaint procedures and expressly addresses the forty-five-day limitation period. Therefore, based on a review of the record, we find that complainant's March 4, 2002 EEO Counselor contact was untimely, and that complainant failed to provide sufficient justification for tolling or extending the time limit for contacting an EEO Counselor. Accordingly, the agency's properly dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2). After a review of the agency's request for reconsideration, 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(b), and it is the decision of the Commission to GRANT the agency's request. The decision of the Commission in Appeal No. 01A30165 is REVERSED, and the agency's final decision to dismiss claim (2) is AFFIRMED. There 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 (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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat August 4, 2005 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "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" ]	[ -0.01614028960466385, 0.061584774404764175, 0.03506040945649147, -0.013621625490486622, -0.011536146514117718, 0.06118502467870712, -0.011953063309192657, 0.019385579973459244, 0.022800538688898087, 0.024425964802503586, 0.061711378395557404, 0.027275655418634415, -0.05992861092090607, -0....
81	https://www.eeoc.gov/sites/default/files/decisions/2023_02_03/2022004044.pdf	2022004044.pdf	PDF	application/pdf	11,646	Bertie J .,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.	June 17, 2022	Appeal Number: 2022004044 Background: At the time of events giving rise to this complaint, Complainant worked as a n Equal Employment Opportunity Specialist/Special Emphasis Program Manager, NH -0206- III, at the Agency’s f acility in Fort Lee, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 3, 2022, Complainant and the Agency entered into a settlement agreement (“the NSA”) to resolve the matter . The NS A provided, in pertinent part, that the Agency would temporarily detail Complainant, and further that: Paragraph 3(a)(1). During the detail, the DCMA EEO Director may request work to be performed by the Complainant, as well as review any work that the Com plainant has performed. Should there be a need for the DCMA EEO Director to communicate with the Complainant about any ass igned work, such communications will be conducted through the TFPA Policy Branch supervisor, and not directly with the Complainant. If [name] , the TFPA supervisor is not readily available, the DCMA EEO Director, may also immediately request assistance from ot her Total Force management officials including, the Director, TFP ( Mr. [ ]), the Director, TFL ( Mr. [ ]), or Ms. [ ] (currently, the Acting TF Executive Director). By letter to the Agency dated May 3, 2022, Complainant alleged that the Agency was in breac h of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged th at the Agency failed to abide by Paragraph 3(a)(1) of the NSA, when on April 14, 2022, DCMA EEO Director joined an MS Teams meeting being conducted by Complainant , despite not having been invited to the meeting by Complainant, and then participated in the meeting during the question- and-answer portion by introducing herself and interjecting comments. Complainant acknowledged that DCMA EEO Director did not speak to her directly. However, she stated that two employees asked Complainant a question and DCMA EEO Director started talking and indicated she wanted to add to the discussion. In its June 17, 2022 FAD, the Agency concluded there was no breach of the NSA because DCMA EEO Director did not directly engage Complainant or communicate with her. The FAD noted that in order to ensure compliance with the NSA , the Agency had reminded DCMA EEO Director not to have any direct contact with Complainant during her detail. Complainant filed the instant appeal. On appeal, Complainant contends that per Paragraph 3(a)(1) of the NSA, DCMA EEO Director was directed to have no contact with Compl ainant. However , DCMA EEO Director inserted herself into the quarterly meeting Complainant was conducting with Special Emphasis Program Coordinators , although she had not been invit ed. Complainant contends this was very alarming and distracting and she was not expecting DCMA EEO Director to be present based on the terms of the NSA. She stated she found DCMA EEO Director’s attendance to be a form of bullying because DCMA EEO Director knew this meeting was going to occur, but DCMA EEO Director did not follow the proper coordination with TFPA Policy Branch Supervisor or others. Complainant also argues that DCMA EEO Director’s presence in the meeting affected Complainant’s ability to furt her interact in the meeting since the Agency had directed her not to direct ly contact DCMA EEO Director. The Agency contends on appeal that even if Complainant’s allegations are true, none of them can be categorized as a breach of the NSA because the NSA only prohibits DCMA EEO Director from directly contacting Complainant conc erning any assigned work. The Agency argues that Complainant’s interpretation of the NSA is not within the four corners of the document. Legal Analysis: EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that control s the contract’s construction. Eggleston v. Dep’t of Veterans Affairs , EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meani ng must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case, Complainant is asserting the A gency breached the NSA when DCMA EEO Director joined her MS Teams meeting because Paragraph 3(a)(1) prohibits DCMA EEO Director from contacting Complainant directly. However, we agree with the Agency that the plain and unambiguous language of the NSA only restricts communications about work DCMA EEO Director has assigned to the Complainant. The allegations raised by Complainant do not show that DCMA EEO Director contacted Complainant directly about assigned work. In settlement breach cases, the burden is al ways placed on the party alleging breach to e stablish that a breach has occurred. See Mike T v. Dep’t of Homeland Security , EEOC Request No. 0520140553 (Mar. 15 2017); Porter v. U.S. Postal Serv., EEOC Appeal N o. 01A54699 (Dec. 20, 2005). Complainant has not done so here.	Bertie J .,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022004044 Agency No. 2021- CON-103 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 17, 2022, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a n Equal Employment Opportunity Specialist/Special Emphasis Program Manager, NH -0206- III, at the Agency’s f acility in Fort Lee, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 3, 2022, Complainant and the Agency entered into a settlement agreement (“the NSA”) to resolve the matter . The NS A provided, in pertinent part, that the Agency would temporarily detail Complainant, and further that: Paragraph 3(a)(1). During the detail, the DCMA EEO Director may request work to be performed by the Complainant, as well as review any work that the Com plainant has performed. Should there be a need for the DCMA EEO Director to communicate with the Complainant about any ass igned work, such communications will be conducted through the TFPA Policy Branch supervisor, and not directly with the Complainant. If [name] , the TFPA supervisor is not readily available, the DCMA EEO Director, may also immediately request assistance from ot her Total Force management officials including, the Director, TFP ( Mr. [ ]), the Director, TFL ( Mr. [ ]), or Ms. [ ] (currently, the Acting TF Executive Director). By letter to the Agency dated May 3, 2022, Complainant alleged that the Agency was in breac h of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged th at the Agency failed to abide by Paragraph 3(a)(1) of the NSA, when on April 14, 2022, DCMA EEO Director joined an MS Teams meeting being conducted by Complainant , despite not having been invited to the meeting by Complainant, and then participated in the meeting during the question- and-answer portion by introducing herself and interjecting comments. Complainant acknowledged that DCMA EEO Director did not speak to her directly. However, she stated that two employees asked Complainant a question and DCMA EEO Director started talking and indicated she wanted to add to the discussion. In its June 17, 2022 FAD, the Agency concluded there was no breach of the NSA because DCMA EEO Director did not directly engage Complainant or communicate with her. The FAD noted that in order to ensure compliance with the NSA , the Agency had reminded DCMA EEO Director not to have any direct contact with Complainant during her detail. Complainant filed the instant appeal. On appeal, Complainant contends that per Paragraph 3(a)(1) of the NSA, DCMA EEO Director was directed to have no contact with Compl ainant. However , DCMA EEO Director inserted herself into the quarterly meeting Complainant was conducting with Special Emphasis Program Coordinators , although she had not been invit ed. Complainant contends this was very alarming and distracting and she was not expecting DCMA EEO Director to be present based on the terms of the NSA. She stated she found DCMA EEO Director’s attendance to be a form of bullying because DCMA EEO Director knew this meeting was going to occur, but DCMA EEO Director did not follow the proper coordination with TFPA Policy Branch Supervisor or others. Complainant also argues that DCMA EEO Director’s presence in the meeting affected Complainant’s ability to furt her interact in the meeting since the Agency had directed her not to direct ly contact DCMA EEO Director. The Agency contends on appeal that even if Complainant’s allegations are true, none of them can be categorized as a breach of the NSA because the NSA only prohibits DCMA EEO Director from directly contacting Complainant conc erning any assigned work. The Agency argues that Complainant’s interpretation of the NSA is not within the four corners of the document. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that control s the contract’s construction. Eggleston v. Dep’t of Veterans Affairs , EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meani ng must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case, Complainant is asserting the A gency breached the NSA when DCMA EEO Director joined her MS Teams meeting because Paragraph 3(a)(1) prohibits DCMA EEO Director from contacting Complainant directly. However, we agree with the Agency that the plain and unambiguous language of the NSA only restricts communications about work DCMA EEO Director has assigned to the Complainant. The allegations raised by Complainant do not show that DCMA EEO Director contacted Complainant directly about assigned work. In settlement breach cases, the burden is al ways placed on the party alleging breach to e stablish that a breach has occurred. See Mike T v. Dep’t of Homeland Security , EEOC Request No. 0520140553 (Mar. 15 2017); Porter v. U.S. Postal Serv., EEOC Appeal N o. 01A54699 (Dec. 20, 2005). Complainant has not done so here. CONCLUSION After a thorough review of the record, and for the foregoing reasons, the Commission AFFIRMS the Agency's June 17, 2022 final determination finding no breach of the settlement agreement. STATEMENT OF RIGHTS - ON APPEAL RECO NSIDERATION (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 decis ion involved a cle arly 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 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 reconsiderati on. 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 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 statemen t 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 resul t 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 to gether 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 t he 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 the se types o f 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. H adden’s signature Carlton M. Hadden, Director Office of Federal Operations December 20, 2022 Date	[ "Herrington v. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996)", "Eggleston v. Dep’t of Veterans Affairs , EEOC Request No. 05900795 (August 23, 1990)", "730 F.2d 377", "29 C.F.R. § 1614.402", "29 C.F.R. § 1614.504(b)", "29 C.F.R. § 1614.405", "29 C.F.R. § 1614.504(a)", "29 C.F.R. § 1614.6...	[ -0.09695299714803696, 0.09850607067346573, 0.026242708787322044, 0.025145240128040314, -0.008672951720654964, 0.01663263514637947, 0.02730436623096466, 0.005449751857668161, 0.023804351687431335, 0.04439154267311096, 0.0426822304725647, -0.03549916297197342, 0.00528521416708827, -0.0009680...
82	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A35410_r.txt	01A35410_r.txt	TXT	text/plain	10,497	Franklin R. Perkins v. Department of the Air Force 01A35410 March 12, 2004 . Franklin R. Perkins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.	March 12, 2004	Appeal Number: 01A35410 Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated August 13, 2003, 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. On April 11, 2003, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. In his formal EEO complaint, filed on July 21, 2003, complainant alleged that he was subjected to discrimination on the bases of race, religion, and color when: (a). on October 9, 2002, he was issued a Civilian Progress Review Worksheet, AF Form 860B, on which he believes he received a lower evaluation than he deserved; and (b). effective November 17, 2002, his temporary promotion to a GS-895-12, Supervisory Industrial Engineering Technician, was terminated for his failure to satisfy the probationary period required for a supervisory position. In its final decision, the agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the agency determined that complainant did not contact an EEO Counselor until April 11, 2003; and that complainant acknowledged his EEO contact was outside of the 45-day limitation period but provided no justifiable reason for the delay. On appeal, complainant acknowledged that his EEO contact was untimely because he had been unaware of the EEO procedures and the limitation period for timely contacting an EEO Counselor. Complainant further argues that in a Supervisor notification letter of demotion to him dated November 7, 2002, the Supervisor made an erroneous reference to an appeal procedure that was inapplicable and would be ultimately futile. In response, the agency acknowledges that the Supervisor's letter dated November 7, 2002, notifying complainant that he was being demoted from his supervisory position, did not contain anything about initiating EEO contact. The agency states that information about initiating EEO contact is not routinely included in letters notifying employees of demotions or disciplinary actions. The agency, also submits a document identified as Election for Alternative Dispute Resolution wherein complainant stated that he was notified of the 45-day limitation period on January 29, 2003, but declined to initiate EEO counseling on that date. The agency also submits a copy of the affidavit of complainant's Supervisor, dated October 22, 2003, wherein he stated that at the time complainant became a supervisor, he received training informing him of the 45-day limitation period for contacting an EEO Counselor; and that EEO posters describing the 45-day limit were on display at complainant's work facility such as on the bulletin boards and in the break areas. Thereafter, complainant submitted a response to the agency's arguments. Therein, complainant argues that the agency attempted to mislead the Commission in its response to his appeal. Complainant further argues that his January 29, 2003 EEO contact was related to a 2002 non-selection (Appeal No. 9V1M13149), and was not related to claims (a) and (b) in the instant case. Furthermore, complainant argues that the agency failed to provide evidence showing that he attended EEO training and that he was informed of 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 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 case, complainant contends that he was unaware of the EEO procedures and the limitation period for timely contacting an EEO Counselor. The Commission, however, finds that the agency has offered more than a generalized affirmation that complainant was aware of the 45 day limitation period. Specifically, the record contains a copy of the Election for Alternative Dispute Resolution document signed and dated by complainant on January 29, 2003, wherein he stated that he was notified of the 45-day limitation period. Even though complainant declined to initiate EEO counseling at that time, on a matter unrelated to the instant complaint, he was nonetheless put on notice on January 29, 2003, of the 45-day limitation period for timely contacting an EEO Counselor. The Commission determines that complainant had or should have had a reasonable suspicion of unlawful employment discrimination well prior to his initial April 11, 2003 EEO contact concerning claims (a) and (b) in the instant complaint, and that he had notice of the limitation period (in January 2003) more than 45 days before the initial EEO Counselor contact in April 2003. Moreover, we note in his affidavit, complainant's Supervisor testified that when complainant became a supervisor, he received training informing him of the 45- day limitation period for contacting an EEO Counselor. Complainant has failed to submit adequate justification for extending the limitation period beyond forty-five days. Finally, the record does not support a determination that an agency letter to complainant dated November 7, 2002, misled him regarding pursuing an EEO complaint. Final Decision: Accordingly, the agency's final decision dismissing the instant complaint for untimely EEO contact was proper and is AFFIRMED.	Franklin R. Perkins v. Department of the Air Force 01A35410 March 12, 2004 . Franklin R. Perkins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency. Appeal No. 01A35410 Agency No. 9V1M03266 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated August 13, 2003, 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. On April 11, 2003, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. In his formal EEO complaint, filed on July 21, 2003, complainant alleged that he was subjected to discrimination on the bases of race, religion, and color when: (a). on October 9, 2002, he was issued a Civilian Progress Review Worksheet, AF Form 860B, on which he believes he received a lower evaluation than he deserved; and (b). effective November 17, 2002, his temporary promotion to a GS-895-12, Supervisory Industrial Engineering Technician, was terminated for his failure to satisfy the probationary period required for a supervisory position. In its final decision, the agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the agency determined that complainant did not contact an EEO Counselor until April 11, 2003; and that complainant acknowledged his EEO contact was outside of the 45-day limitation period but provided no justifiable reason for the delay. On appeal, complainant acknowledged that his EEO contact was untimely because he had been unaware of the EEO procedures and the limitation period for timely contacting an EEO Counselor. Complainant further argues that in a Supervisor notification letter of demotion to him dated November 7, 2002, the Supervisor made an erroneous reference to an appeal procedure that was inapplicable and would be ultimately futile. In response, the agency acknowledges that the Supervisor's letter dated November 7, 2002, notifying complainant that he was being demoted from his supervisory position, did not contain anything about initiating EEO contact. The agency states that information about initiating EEO contact is not routinely included in letters notifying employees of demotions or disciplinary actions. The agency, also submits a document identified as Election for Alternative Dispute Resolution wherein complainant stated that he was notified of the 45-day limitation period on January 29, 2003, but declined to initiate EEO counseling on that date. The agency also submits a copy of the affidavit of complainant's Supervisor, dated October 22, 2003, wherein he stated that at the time complainant became a supervisor, he received training informing him of the 45-day limitation period for contacting an EEO Counselor; and that EEO posters describing the 45-day limit were on display at complainant's work facility such as on the bulletin boards and in the break areas. Thereafter, complainant submitted a response to the agency's arguments. Therein, complainant argues that the agency attempted to mislead the Commission in its response to his appeal. Complainant further argues that his January 29, 2003 EEO contact was related to a 2002 non-selection (Appeal No. 9V1M13149), and was not related to claims (a) and (b) in the instant case. Furthermore, complainant argues that the agency failed to provide evidence showing that he attended EEO training and that he was informed of the 45-day limitation period. 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 case, complainant contends that he was unaware of the EEO procedures and the limitation period for timely contacting an EEO Counselor. The Commission, however, finds that the agency has offered more than a generalized affirmation that complainant was aware of the 45 day limitation period. Specifically, the record contains a copy of the Election for Alternative Dispute Resolution document signed and dated by complainant on January 29, 2003, wherein he stated that he was notified of the 45-day limitation period. Even though complainant declined to initiate EEO counseling at that time, on a matter unrelated to the instant complaint, he was nonetheless put on notice on January 29, 2003, of the 45-day limitation period for timely contacting an EEO Counselor. The Commission determines that complainant had or should have had a reasonable suspicion of unlawful employment discrimination well prior to his initial April 11, 2003 EEO contact concerning claims (a) and (b) in the instant complaint, and that he had notice of the limitation period (in January 2003) more than 45 days before the initial EEO Counselor contact in April 2003. Moreover, we note in his affidavit, complainant's Supervisor testified that when complainant became a supervisor, he received training informing him of the 45- day limitation period for contacting an EEO Counselor. Complainant has failed to submit adequate justification for extending the limitation period beyond forty-five days. Finally, the record does not support a determination that an agency letter to complainant dated November 7, 2002, misled him regarding pursuing an EEO complaint. Accordingly, the agency's final decision dismissing the instant complaint for untimely EEO 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 March 12, 2004 __________________ 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)", "42 U.S.C. § 2000e", "29 U.S.C. §§ 791" ]	[ -0.021800240501761436, 0.05961056053638458, -0.03349956497550011, 0.007420919835567474, 0.08858814835548401, 0.057539742439985275, 0.0298932958394289, 0.02723821811378002, -0.06949082016944885, 0.030730590224266052, 0.0006487078499048948, 0.0708184540271759, -0.011071142740547657, -0.00692...
83	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A30348_r.txt	01A30348_r.txt	TXT	text/plain	10,610	Leno A. Serafini, Jr. v. Department of Defense 01A30348 February 27, 2003 . Leno A. Serafini, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.	February 27, 2003	Appeal Number: 01A30348 Complaint Allegations: In his complaint filed on March 12, 2002, complainant alleged that he was subjected to discrimination on the bases of race, sex, religion, age, and in reprisal for prior EEO activity when: (a) on January 9, 2001, he was told that he would no longer be performing duties as a CAW operator; and (b) in January 2001, an EEO Counselor in the DDSP EEO Office told him that he did not have a basis for his complaint. Case Facts: Complainant filed a timely appeal with this Commission from the final agency decision dated September 16, 2002, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his complaint filed on March 12, 2002, complainant alleged that he was subjected to discrimination on the bases of race, sex, religion, age, and in reprisal for prior EEO activity when: (a) on January 9, 2001, he was told that he would no longer be performing duties as a CAW operator; and (b) in January 2001, an EEO Counselor in the DDSP EEO Office told him that he did not have a basis for his complaint. The agency dismissed claim (a) on the grounds of untimely EEO Counselor contact. Specifically, the agency determined that although the alleged discriminatory event occurred on January 9, 2001, complainant waited beyond the forty-five day limitation period. The agency acknowledged that complainant contacted an EEO Counselor on January 18, 2001; however, the agency determined that complainant did not pursue further his complaint until November 7, 2001, when he sent an email to the EEO office requesting counseling. The agency further noted that when the EEO Counselor inquired about the delay, complainant explained that on January 18, 2001, he was told by the EEO Counselor that he did not have a valid complaint. The agency determined that complainant failed to pursue this matter with due diligence. The agency dismissed claim (b) for alleging dissatisfaction with the processing of his prior complaint. The agency determined that complainant's claim concerns what he considers improper handling of his previous EEO complaint. On appeal, complainant contends that the time limit should be waived because he was ignorant of the applicable EEO time limits despite the fact that he asked an EEO official for information in January 2001. In response, the agency contends that complainant had constructive knowledge of the applicable time limits. The agency submits an affidavit from the Equal Employment Specialist, stating that EEO information was posted at complainant's former worksite and a copy of the EEO poster describing the time limitation for contacting a Counselor. The agency also submits another affidavit from an EEO official, who asserts that he never informed complainant that he did not have a valid case in their meeting in January 2001. In addition, the agency notes in his email dated November 7, 2001, to the EEO office, complainant claimed that during the January 2001 time period, he was distracted which prevented him from filing a grievance and an EEO complaint. The agency argues that complainant's delay in pursuing his complaint was for reasons other than purportedly being informed by the EEO Counselor that his complaint was not valid. 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. With respect to claim (a), we find that while complainant may have initially contacted the Counselor in a timely manner in January 2001, concerning the removal of his CAW duties, he did not pursue this matter again until contacting an EEO Counselor in November 2001. The Commission has held that a complainant fails to timely contact an EEO Counselor when he withdraws from counseling and subsequently reinitiates the counseling in an untimely manner. See Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Here, complainant may have initially contacted an EEO Counselor in a timely manner regarding claim (a), in January 2001; however, he in effect abandoned pursuit of that matter until raising this issue in November 2001. Complainant asserts on appeal that he was not informed about any time limits. However, complainant's assertion is not supported by the record. The record contains complainant's email dated November 7, 2001, to the EEO office. Therein, complainant stated that it was during the January 2001 timeframe when his supervisor and a co-worker were giving him problems that it caused enough distraction to keep me away from filing a grievance and an EEO complaint. Furthermore, the record contains an affidavit which indicates that EEO posters containing the applicable time limitation were on display. Therefore, we find that complainant had constructive knowledge of the applicable time limits. See Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995). The Commission finds that the agency's dismissal of claim (a) was proper. The agency dismissed claim (b) pursuant to 29 C.F.R. § 1614.107(a)(8), which states that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Complainant alleges that the agency failed to provide proper EEO counseling in the present case. Clearly, this involves dissatisfaction with the processing of the present complaint. Since we find that the underlying complaint is properly dismissed as untimely, we find that claim (b) is also properly dismissed on the grounds of alleging dissatisfaction with complaint processing. Final Decision: Accordingly, the agency's decision to dismiss the complaint was proper and is hereby AFFIRMED.	Leno A. Serafini, Jr. v. Department of Defense 01A30348 February 27, 2003 . Leno A. Serafini, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency. Appeal No. 01A30348 Agency No. JQ-02-048 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated September 16, 2002, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his complaint filed on March 12, 2002, complainant alleged that he was subjected to discrimination on the bases of race, sex, religion, age, and in reprisal for prior EEO activity when: (a) on January 9, 2001, he was told that he would no longer be performing duties as a CAW operator; and (b) in January 2001, an EEO Counselor in the DDSP EEO Office told him that he did not have a basis for his complaint. The agency dismissed claim (a) on the grounds of untimely EEO Counselor contact. Specifically, the agency determined that although the alleged discriminatory event occurred on January 9, 2001, complainant waited beyond the forty-five day limitation period. The agency acknowledged that complainant contacted an EEO Counselor on January 18, 2001; however, the agency determined that complainant did not pursue further his complaint until November 7, 2001, when he sent an email to the EEO office requesting counseling. The agency further noted that when the EEO Counselor inquired about the delay, complainant explained that on January 18, 2001, he was told by the EEO Counselor that he did not have a valid complaint. The agency determined that complainant failed to pursue this matter with due diligence. The agency dismissed claim (b) for alleging dissatisfaction with the processing of his prior complaint. The agency determined that complainant's claim concerns what he considers improper handling of his previous EEO complaint. On appeal, complainant contends that the time limit should be waived because he was ignorant of the applicable EEO time limits despite the fact that he asked an EEO official for information in January 2001. In response, the agency contends that complainant had constructive knowledge of the applicable time limits. The agency submits an affidavit from the Equal Employment Specialist, stating that EEO information was posted at complainant's former worksite and a copy of the EEO poster describing the time limitation for contacting a Counselor. The agency also submits another affidavit from an EEO official, who asserts that he never informed complainant that he did not have a valid case in their meeting in January 2001. In addition, the agency notes in his email dated November 7, 2001, to the EEO office, complainant claimed that during the January 2001 time period, he was distracted which prevented him from filing a grievance and an EEO complaint. The agency argues that complainant's delay in pursuing his complaint was for reasons other than purportedly being informed by the EEO Counselor that his complaint was not valid. 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. With respect to claim (a), we find that while complainant may have initially contacted the Counselor in a timely manner in January 2001, concerning the removal of his CAW duties, he did not pursue this matter again until contacting an EEO Counselor in November 2001. The Commission has held that a complainant fails to timely contact an EEO Counselor when he withdraws from counseling and subsequently reinitiates the counseling in an untimely manner. See Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Here, complainant may have initially contacted an EEO Counselor in a timely manner regarding claim (a), in January 2001; however, he in effect abandoned pursuit of that matter until raising this issue in November 2001. Complainant asserts on appeal that he was not informed about any time limits. However, complainant's assertion is not supported by the record. The record contains complainant's email dated November 7, 2001, to the EEO office. Therein, complainant stated that it was during the January 2001 timeframe when his supervisor and a co-worker were giving him problems that it caused enough distraction to keep me away from filing a grievance and an EEO complaint. Furthermore, the record contains an affidavit which indicates that EEO posters containing the applicable time limitation were on display. Therefore, we find that complainant had constructive knowledge of the applicable time limits. See Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995). The Commission finds that the agency's dismissal of claim (a) was proper. The agency dismissed claim (b) pursuant to 29 C.F.R. § 1614.107(a)(8), which states that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Complainant alleges that the agency failed to provide proper EEO counseling in the present case. Clearly, this involves dissatisfaction with the processing of the present complaint. Since we find that the underlying complaint is properly dismissed as untimely, we find that claim (b) is also properly dismissed on the grounds of alleging dissatisfaction with complaint processing. Accordingly, the agency's decision to dismiss the complaint was proper and is hereby 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 27, 2003 __________________ Date	[ "Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)", "Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)", "Santiago v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995)", "29 C.F.R. § 1614.105(a)", "29 C.F.R. § 1614.107(a)", "...	[ -0.053930480033159256, 0.0817156657576561, -0.020233871415257454, 0.04007050767540932, -0.025544656440615654, 0.07939793169498444, 0.017209669575095177, -0.028058072552084923, -0.07498007267713547, -0.0033395884092897177, 0.016954658553004265, 0.011362411081790924, -0.02710934355854988, 0....
84	https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022001039.pdf	2022001039.pdf	PDF	application/pdf	14,400	Henry S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.	November 19, 2021	Appeal Number: 2022001039 Background: At the time of events giving rise to this complaint, Complainant worked as a n Advanced Medical Support Assistant, GS-6, at the Agency’s Medical Center in Asheville, North Carolina. On September 28, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the base s of disability , age (62), and reprisal for prior protected EEO activity when: 1. On November 19, 2018, the Supervisory Advanced Medical Support Assistant (Supervisor) denied Complainant’s request to attend Advanced Medical Support Training (AMSA) training in person. 2. On November 26, 2018, the Administrative Officer assigned Complainant to work at the desk window. 3. On June 14, 2019, Supervisor placed Complainant on a 90- day Performance Improvement Plan (PIP). 4. On July 23, 2019, Complainant was not selected for the position of Supply Technician, under vacancy announcement number CAYN -10466874- 19-CC. 5. On October 19, 2019, Complainant was subjected to constructive discharge when he was forced to retire from his position due to his medical and work conditions. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) for failure t o comply with the regulatory time limits. Complainant filed the instant appeal. On appeal, Complainant contends he met with the Acting Medical Director on May 29, 2019 about his concerns and the Acting Medical Director told Complainant he w ould direct the VAMC to initiate an EEO complaint on the issues raised with him during the meeting. Complainant states he never received any further guidance or information regarding his complaint until he reached out to the Agency’s Office of Resolution Management on June 14, 2021, at which time he received a case number and EEO counseling. Complainant asserts the time limit for contacting an EEO couns elor should be extended because he was told by Acting Medical Director that a complaint was being filed on Complainant’s behalf. Complainant argues that as a result of the misinformation provided to him, the Agency should be estopped from dismissing his co mplaint. He further states that he was suffering from illness that left him unable to pursue his complaint, and that the shutdown of facilities due to the COVID -19 pandemic also played an additional role in his delay. The Agency contends on appeal that Complainant has submitted no evidence of incapacity or exigent circumstances and he has loosely tried to argue alternative s rather than focusing on any legitimate reason he might have for failing to pursue his complaint f or two years. The Agency notes that Complainant did not make any argument that his complaint was not timely processed or was unacknowledged due to the Agency’s adaptation during the pandemic . They also not e that although Complainant alleged he was not awar e of the time limits, he received training on multiple occasions that informed him of the se requirements, and that Complainant provided information attached to his own appeal brief stating that an EEO program manager visited Complainant’s facility followin g Complainant’s May 2019 meeting with Acting Medical Director and provided employees with information regarding the EEO process. Legal Analysis: EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if 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, tha t despite due diligence complainant was prevented by circumstances beyo nd her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, the record reflects that Complaina nt underwent EEO training on several occasions . The documents he submitted also contain a response to a Congressional Inquiry in which the Agency stated an EEO Manager traveled to Complai nant’s facility the day after his meeting with Acting Medical Directo r to provide information to Complainant “ and other employees on the process for filing EEO complaints, grievances, and requests for Reasonable Accommodation. [Complainant] did not file an EEO complaint at that time, nor did he contact the EEO Manager later with a complaint .” (Complainant Appeal Brief, p . 40). Complainant alleges incapacity and exigent circumstances due to the COVID -19 pandemic. However, we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so inc apacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. U.S. Postal Serv. , EEOC Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental and physical capacity, without medical eviden ce of incapacity, does not warrant extension of time limits). Complainant has not provided any medical evidence to support his claims of incapacity. Additionally, t he Commission has consistently held that a complainant must act with due diligence in the pursuit of h is claim or the doctrine of laches may apply. See Becker v. U .S. Postal Serv. , EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discrim inatory events before contacting an EEO Counselor); O'Dell v. Dep ’t. of Health an d Human Serv., EEOC Request No. 05901130 (December 27, 1990). The record here reflects that the events at issue occurred between November 2018 and October 2019. Complainant’s earliest documented EEO contact is June 14, 2021. Although Complainant alleges EE O contact in May 2019, he waited over two years to follow up on this alleged contact . Therefore, we find Complainant has not acted with due diligence in pursuit of his claim a nd the doctrine of laches applies here. Complainant has not provided sufficient justification to warrant tolling of the time limits. His EEO counselor contact was not timely . As such, the Agency correctly dismissed the complaint.	Henry S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001039 Agency No. 2004-0637-2021104210 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 19, 2021, dismissing his complaint alleging unlawful employment discrimination in violation of Section 501 of the Re habilitation 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 Advanced Medical Support Assistant, GS-6, at the Agency’s Medical Center in Asheville, North Carolina. On September 28, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the base s of disability , age (62), and reprisal for prior protected EEO activity when: 1. On November 19, 2018, the Supervisory Advanced Medical Support Assistant (Supervisor) denied Complainant’s request to attend Advanced Medical Support Training (AMSA) training in person. 2. On November 26, 2018, the Administrative Officer assigned Complainant to work at the desk window. 3. On June 14, 2019, Supervisor placed Complainant on a 90- day Performance Improvement Plan (PIP). 4. On July 23, 2019, Complainant was not selected for the position of Supply Technician, under vacancy announcement number CAYN -10466874- 19-CC. 5. On October 19, 2019, Complainant was subjected to constructive discharge when he was forced to retire from his position due to his medical and work conditions. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) for failure t o comply with the regulatory time limits. Complainant filed the instant appeal. On appeal, Complainant contends he met with the Acting Medical Director on May 29, 2019 about his concerns and the Acting Medical Director told Complainant he w ould direct the VAMC to initiate an EEO complaint on the issues raised with him during the meeting. Complainant states he never received any further guidance or information regarding his complaint until he reached out to the Agency’s Office of Resolution Management on June 14, 2021, at which time he received a case number and EEO counseling. Complainant asserts the time limit for contacting an EEO couns elor should be extended because he was told by Acting Medical Director that a complaint was being filed on Complainant’s behalf. Complainant argues that as a result of the misinformation provided to him, the Agency should be estopped from dismissing his co mplaint. He further states that he was suffering from illness that left him unable to pursue his complaint, and that the shutdown of facilities due to the COVID -19 pandemic also played an additional role in his delay. The Agency contends on appeal that Complainant has submitted no evidence of incapacity or exigent circumstances and he has loosely tried to argue alternative s rather than focusing on any legitimate reason he might have for failing to pursue his complaint f or two years. The Agency notes that Complainant did not make any argument that his complaint was not timely processed or was unacknowledged due to the Agency’s adaptation during the pandemic . They also not e that although Complainant alleged he was not awar e of the time limits, he received training on multiple occasions that informed him of the se requirements, and that Complainant provided information attached to his own appeal brief stating that an EEO program manager visited Complainant’s facility followin g Complainant’s May 2019 meeting with Acting Medical Director and provided employees with information regarding the EEO process. ANALYSIS AND FINDINGS EEO C Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complain ant did not 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 actio n, within 45 days of the effective date of the action. See also , 29 C.F.R. § 1614.105(a)(1) . 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. S ee 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). Complainant contends he met with the Acting Medic al Director on May 29, 2019, and that the Acting Medical Director told Complainant he would initiate an EEO complaint on his behalf. However, he has not provided any support or corroboration for this contention that Acting Medical Director agreed to file an EEO Complaint on his behalf. T he memorandum given by Complainant to the Acting Medical Director does not support that Complainant was alleging discrimination on any basis that would bring his complaints under the purview of EEO laws and regulations. Complainant’s memorandum describes how he believed he was being treated differently than other employees and subjected to a hostile work environment, but does not mention his age, disability, reprisal, or any other reason that EEO laws would be applicable to his complaints. (Complainant Appeal Brief, pp. 11- 12). Therefore , even if we we re to find that Acting Medical Director was logically connected to the EEO process, we find that Complainant did not exhibit any intent to begin the EEO process at that time. He first contacted an official logically connected to the EEO process and exhibited an intent to begin the EEO process on June 14, 2021 when he contacted the Agency’s Office of Resolution Management. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if 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, tha t despite due diligence complainant was prevented by circumstances beyo nd her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, the record reflects that Complaina nt underwent EEO training on several occasions . The documents he submitted also contain a response to a Congressional Inquiry in which the Agency stated an EEO Manager traveled to Complai nant’s facility the day after his meeting with Acting Medical Directo r to provide information to Complainant “ and other employees on the process for filing EEO complaints, grievances, and requests for Reasonable Accommodation. [Complainant] did not file an EEO complaint at that time, nor did he contact the EEO Manager later with a complaint .” (Complainant Appeal Brief, p . 40). Complainant alleges incapacity and exigent circumstances due to the COVID -19 pandemic. However, we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so inc apacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. U.S. Postal Serv. , EEOC Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental and physical capacity, without medical eviden ce of incapacity, does not warrant extension of time limits). Complainant has not provided any medical evidence to support his claims of incapacity. Additionally, t he Commission has consistently held that a complainant must act with due diligence in the pursuit of h is claim or the doctrine of laches may apply. See Becker v. U .S. Postal Serv. , EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discrim inatory events before contacting an EEO Counselor); O'Dell v. Dep ’t. of Health an d Human Serv., EEOC Request No. 05901130 (December 27, 1990). The record here reflects that the events at issue occurred between November 2018 and October 2019. Complainant’s earliest documented EEO contact is June 14, 2021. Although Complainant alleges EE O contact in May 2019, he waited over two years to follow up on this alleged contact . Therefore, we find Complainant has not acted with due diligence in pursuit of his claim a nd the doctrine of laches applies here. Complainant has not provided sufficient justification to warrant tolling of the time limits. His EEO counselor contact was not timely . As such, the Agency correctly dismissed the complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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 establis h 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 mu st 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 Empl oyment 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 P ublic 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 O perations, 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 Port al, 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 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) c alendar 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 offic ial title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” m eans 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 fro m 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 wa iver 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 p aragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSI ON: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 28, 2022 Date	[ "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, 1998)", "Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996)...	[ -0.09013887494802475, 0.0940893366932869, -0.01672045700252056, 0.024154191836714745, 0.018635164946317673, 0.0744740217924118, -0.01433570310473442, -0.01183374971151352, -0.047540757805109024, 0.03815509378910065, 0.03216591477394104, -0.01620902121067047, -0.009750373661518097, 0.019074...
85	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152361.txt	0120152361.txt	TXT	text/plain	15,521	Beatriz L.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.	June 5, 2015	Appeal Number: 0120152361 Background: At the time of events giving rise to this complaint, Complainant worked as a Assistant Principal at the Agency's Sollars Elementary School facility in the Japan District. On March 2, 2015, Complainant contacted the EEO Counselor. Complainants indicated in an email to the EEO Counselor that she had been suspended and was informed that she could not have contact with Agency officials. She also indicated that she had been subjected to harassment which has resulted in her becoming ill. The EEO Counselor sent Complainant the EEO documents for her review and signature. Her representative (Representative)2 also emailed the EEO Counselor asserting that Complainant was "incapacitated." The EEO Counselor attempted to meet with Complainant and the Representative. However, the Representative noted Complainant's medical condition and asked that Complainant be issued her Notice of Right to File a Formal Complaint. On May 4, 2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint. On May 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Not Specified), sex (female), age (over 40), disability, and reprisal for her prior EEO complaint when she was subjected to harassment since 2012. In support of her claim, Complainant alleged that the following events occurred: 1. On April 28, 2015, Complainant was constructively discharged when she was forced to resign due to the harassment; 2. The Principal made comments regarding Complainant's alleged personality flaws and lack of intelligence. She isolated, yelled at, mocked, and micromanaged Complainant. 3. Complainant was denied upward mobility; 4. The Principal denied Complainant's leave request to attend medical appointments; 5. Complainant's leave requests under the Family Medical Leave Act (FMLA) were denied. 6. Complainant's request for reasonable accommodation was denied; 7. Adverse information was placed in Complainant's personnel file; 8. Complainant was suspended for five days; and 9. On August 25, 2014, Complainant was reassigned from the Korean District to her assistant principal position in the Japan District. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for failing to bring for these issues before an EEO Counselor. The Agency noted that on March 6, 2015, the EEO Counselor sent Complainant and the Representative information and forms regarding the EEO complaint process and asked that the materials be returned signed by March 10, 2015. The same day, the Representative stated that the forms would be completed. On March 16, 2015, when the forms were not returned, Complainant contacted the EEO Counselor about gathering information for the Counselor to review. The EEO Counselor informed Complainant that she needed to engage in counseling or the matter may be dismissed. The Representative emailed back stating that Complainant was having a medical emergency and that she will be unavailable. The next day, Complainant contacted the EEO Counselor asking for an extension for counseling. On March 23, 2015, the EEO Counselor attempted to contact Complainant. The Representative stated that Complainant was incapacitated, on FMLA leave, and would not be providing anything more. In April, the Representative provided signed documents and the EEO Counselor provided Complainant with her Notice of Right to File a Formal Complaint. The Agency found that the EEO Counselor attempted to provide the required counseling, but Complainant failed to provide anything but her vague claims. The Agency found that Counselor was unable to engage in the informal process due to Complainant's failure to respond. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). In addition, the Agency found that event (9) was raised with the EEO Counselor outside of the 45 day time limit. As such, the Agency also dismissed that claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. This appeal followed. On appeal, Complainant provided copies of the email exchanges she had with the EEO Counselor. Complainant asked that the matter be remanded. The Agency responded asserting that the Representative has a law degree and is well aware of the regulations despite presenting himself as a non-attorney representative. Further, the Agency asserted that this is not the only time the Representative has argued that another employee was incapacitated in another EEO matter. The Agency asserted that the Commission should not be misled by the Representative. Legal Analysis: the Commission should not be misled by the Representative. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R § 1614.107(a)(2) provides that the Agency shall dismiss 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. A review of the record indicates that Complainant and the Representative did not meet with the EEO Counselor. However, a review of the emails and the EEO Counselor's report show that Complainant informed the EEO Counselor that she had been subjected to harassment which had resulted in a medical emergency. Furthermore, Complainant noted that she was suspended and that during her suspension, she was instructed not to speak with Agency officials who she believed included the EEO Counselor. The EEO Counselor also listed the same nine events in her report as noted in the Agency's final decision. As such, we find that the EEO Counselor was made aware of Complainant's claim of harassment since 2012 including the suspension. Furthermore, the events listed by Complainant are all like or related to this claim of harassment. Therefore, we find that the dismissal of the complaint as a whole pursuant to 29 C.F.R § 1614.107(a)(2) was not appropriate. The Agency also dismissed event (9) finding that Complainant failed to raise the matter with the EEO Counselor in a timely manner. 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. We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, Complainant has alleged a claim of harassment which she included events that were timely raised. As such, we find that the dismissal of event (9) was not appropriate.	Beatriz L.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 0120152361 Agency No. PF-FY-15-051 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2015, 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 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 (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 Assistant Principal at the Agency's Sollars Elementary School facility in the Japan District. On March 2, 2015, Complainant contacted the EEO Counselor. Complainants indicated in an email to the EEO Counselor that she had been suspended and was informed that she could not have contact with Agency officials. She also indicated that she had been subjected to harassment which has resulted in her becoming ill. The EEO Counselor sent Complainant the EEO documents for her review and signature. Her representative (Representative)2 also emailed the EEO Counselor asserting that Complainant was "incapacitated." The EEO Counselor attempted to meet with Complainant and the Representative. However, the Representative noted Complainant's medical condition and asked that Complainant be issued her Notice of Right to File a Formal Complaint. On May 4, 2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint. On May 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Not Specified), sex (female), age (over 40), disability, and reprisal for her prior EEO complaint when she was subjected to harassment since 2012. In support of her claim, Complainant alleged that the following events occurred: 1. On April 28, 2015, Complainant was constructively discharged when she was forced to resign due to the harassment; 2. The Principal made comments regarding Complainant's alleged personality flaws and lack of intelligence. She isolated, yelled at, mocked, and micromanaged Complainant. 3. Complainant was denied upward mobility; 4. The Principal denied Complainant's leave request to attend medical appointments; 5. Complainant's leave requests under the Family Medical Leave Act (FMLA) were denied. 6. Complainant's request for reasonable accommodation was denied; 7. Adverse information was placed in Complainant's personnel file; 8. Complainant was suspended for five days; and 9. On August 25, 2014, Complainant was reassigned from the Korean District to her assistant principal position in the Japan District. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for failing to bring for these issues before an EEO Counselor. The Agency noted that on March 6, 2015, the EEO Counselor sent Complainant and the Representative information and forms regarding the EEO complaint process and asked that the materials be returned signed by March 10, 2015. The same day, the Representative stated that the forms would be completed. On March 16, 2015, when the forms were not returned, Complainant contacted the EEO Counselor about gathering information for the Counselor to review. The EEO Counselor informed Complainant that she needed to engage in counseling or the matter may be dismissed. The Representative emailed back stating that Complainant was having a medical emergency and that she will be unavailable. The next day, Complainant contacted the EEO Counselor asking for an extension for counseling. On March 23, 2015, the EEO Counselor attempted to contact Complainant. The Representative stated that Complainant was incapacitated, on FMLA leave, and would not be providing anything more. In April, the Representative provided signed documents and the EEO Counselor provided Complainant with her Notice of Right to File a Formal Complaint. The Agency found that the EEO Counselor attempted to provide the required counseling, but Complainant failed to provide anything but her vague claims. The Agency found that Counselor was unable to engage in the informal process due to Complainant's failure to respond. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). In addition, the Agency found that event (9) was raised with the EEO Counselor outside of the 45 day time limit. As such, the Agency also dismissed that claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. This appeal followed. On appeal, Complainant provided copies of the email exchanges she had with the EEO Counselor. Complainant asked that the matter be remanded. The Agency responded asserting that the Representative has a law degree and is well aware of the regulations despite presenting himself as a non-attorney representative. Further, the Agency asserted that this is not the only time the Representative has argued that another employee was incapacitated in another EEO matter. The Agency asserted that the Commission should not be misled by the Representative. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R § 1614.107(a)(2) provides that the Agency shall dismiss 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. A review of the record indicates that Complainant and the Representative did not meet with the EEO Counselor. However, a review of the emails and the EEO Counselor's report show that Complainant informed the EEO Counselor that she had been subjected to harassment which had resulted in a medical emergency. Furthermore, Complainant noted that she was suspended and that during her suspension, she was instructed not to speak with Agency officials who she believed included the EEO Counselor. The EEO Counselor also listed the same nine events in her report as noted in the Agency's final decision. As such, we find that the EEO Counselor was made aware of Complainant's claim of harassment since 2012 including the suspension. Furthermore, the events listed by Complainant are all like or related to this claim of harassment. Therefore, we find that the dismissal of the complaint as a whole pursuant to 29 C.F.R § 1614.107(a)(2) was not appropriate. The Agency also dismissed event (9) finding that Complainant failed to raise the matter with the EEO Counselor in a timely manner. 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. We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, Complainant has alleged a claim of harassment which she included events that were timely raised. As such, we find that the dismissal of event (9) was not appropriate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMANDS 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 (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 (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 November 3, 2015 __________________ Date 2 The record indicates that Complainant's representative has a law degree but is no longer barred. ------------------------------------------------------------ ------------------------------------------------------------	[ "122 S.Ct. 2061", "29 C.F.R. § 1614.107(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. § 2000e", "29 U.S.C. § 621", "29 U.S.C. § 791" ]	[ -0.08355161547660828, 0.06470121443271637, -0.01872853748500347, 0.02837018109858036, 0.038883812725543976, 0.07276719063520432, 0.02261946350336075, -0.006593966856598854, -0.030991118401288986, 0.06108597666025162, 0.10420958697795868, 0.0002608561480883509, -0.008221758529543877, 0.0268...
86	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993900.r.txt	01993900.r.txt	TXT	text/plain	7,556	Carol Wright v. Department of the Navy 01993900 December 15, 2000 . Carol Wright, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.	December 15, 2000	Appeal Number: 01993900 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. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). We note that complainant did contact the Deputy EEO Officer in December 1995/January 1996, however, there is no indication that complainant exhibited an intent to begin the EEO process at that time. The record reveals that after meeting with the Deputy EEO Officer, complainant pursued the matter through management. Specifically, complainant and a co-worker met with Person B and Person C on January 26, 1996, and raised their joint concerns regarding the alleged hostile behavior of Person A. The record indicates no further contact between complainant and the EEO Office until January 12, 1999, two years after complainant left the agency. Thus, we find no justification for extending the time limit for initiating counselor contact. Final Decision: Accordingly, the agency's decision to dismiss complainant's complaint was proper and is AFFIRMED.	Carol Wright v. Department of the Navy 01993900 December 15, 2000 . Carol Wright, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency. Appeal No. 01993900 Agency No. 99-00250-015 DECISION Complainant filed a timely appeal with this Commission from an agency decision dated April 8, 1999, 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 subjected to discrimination on the basis of sex (female) when: Complainant was subjected to ongoing sexual harassment beginning in January 1994, which did not end until she voluntarily terminated her position on January 31, 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. Specifically, the agency stated that complainant did not initiate contact with an EEO Counselor until January 12, 1999, which was beyond the applicable forty-five (45) day limitation period. On appeal, complainant, through her attorney, argues that she spoke to the Deputy EEO Officer on several occasions beginning in December 1995. Complainant stated that as a result of these meetings she believed that she filed an EEO complaint. In addition, complainant states that during the meetings with the EEO Officer, she was never advised that the meetings did not constitute complaints nor was she advised of her EEO rights. In response to complainant's appeal, the agency stated that complainant contacted the EEO Officer, on or about January 26, 1996, at which time complainant alleged that she was being harassed by her manager (Person A). The agency stated that although complainant was advised of the administrative EEO process she did not initiate informal counseling nor did she indicate an intent to file a formal EEO complaint. The record shows that as a result of complainant's conversations with the EEO Officer in January 1996, management for complainant's Department (Person B and Person C), met with complainant, complainant's co-worker, and complainant's immediate supervisor (S1). Based on the meeting, management directed S2 to have no further direct contact with complainant, and to report any additional concerns to Person B's attention. According to S1, the situation improved and he was not aware if complainant ever reported any further concerns to management. The agency stated that it was not until three years later, and two years after complainant's voluntary resignation, that complainant contacted the EEO Officer, in a letter dated January 12, 1999, to follow up on her sexual harassment complaints on the following dates: 12/12/95; 1/26/96; and 3/7/96." 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). We note that complainant did contact the Deputy EEO Officer in December 1995/January 1996, however, there is no indication that complainant exhibited an intent to begin the EEO process at that time. The record reveals that after meeting with the Deputy EEO Officer, complainant pursued the matter through management. Specifically, complainant and a co-worker met with Person B and Person C on January 26, 1996, and raised their joint concerns regarding the alleged hostile behavior of Person A. The record indicates no further contact between complainant and the EEO Office until January 12, 1999, two years after complainant left the agency. Thus, we find no justification for extending the time limit for initiating counselor contact. 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 December 15, 2000 __________________ Date	[ "Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)", "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" ]	[ -0.10313165187835693, 0.04870307445526123, -0.03154829889535904, 0.07691416144371033, 0.013542144559323788, 0.11539819836616516, 0.02155032940208912, -0.0010417969897389412, -0.08042654395103455, 0.0617263987660408, 0.01144765317440033, 0.008550272323191166, -0.04924999177455902, 0.0223643...
87	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093097.txt	0120093097.txt	TXT	text/plain	18,168	Sisir K. Chattopadhyay, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.	July 10, 2009	Appeal Number: 0120093097 Background: Complainant is a former employee of the Agency, having been employed as a Staff Scientist (Biologist), GS-13, at the Agency's National Institutes of Health, National Institute of Allergy and Infectious Diseases, in Bethesda, Maryland. Complainant has filed numerous EEO complaints against the Agency in relation to his employment, dating to 1998, including a mixed-case complaint regarding his termination by the Agency on May 15, 2006. The issues which led up to Complainant's termination were processed by the Agency in Agency Numbers NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0006.1 The mixed-case termination complaint was processed as NIH-NIAID-06-0001. Subsequently filed complaints include NIH-NIAID-0099-2008,2 NIH-0390-2007,3 and the present complaint. The Agency consolidated NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0001 for processing, and those complaints went before an EEOC Administrative Judge (AJ) in Hearing Numbers 531-2007-00002X and 531-2007-00065X. The AJ issued a decision on October 31, 2007, finding no discrimination, which the Agency implemented on December 5, 2007. Complainant appealed the decision in EEOC Appeal Number 0120081177, which is currently pending before the Commission. In July 2007, Complainant contacted the Agency to file an EEO complaint over what he claimed was the "conflict of interest" on the part of an Agency EEO Complaint Specialist and on the part of the EEO Director at NIH concerning actions taken during the processing of Complainant's mixed-case termination complaint. At issue was a letter Complainant obtained on June 15, 2007, during the discovery process for EEOC Hearing Numbers 531-2007-00002X and 531-2007-00065X. That letter, dated October 27, 2006, sent by the EEO Complaint Specialist to the Agency's EEO Director, stated that the investigation into NIH-NIAID-06-0001 was complete, and requested a final agency decision to be issued, with appeal rights to the Merit Systems Protection Board (MSPB). On November 14, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Asiatic Indian), age (64), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when: On June 11, 2007, pursuant to the [EEOC Administrative Judge's] "Second Memorandum and Order Compelling Discovery" dated May 1, 2007 [EEOC Case Nos. 531-2007-00002X, 531- 2007-00065X; Agency Case Nos. NIHNIAID 040008. NIHNIAID 050004, NIHNIAID 060001] [Agency Counsel] sent me 100 pages of documents [Document # 1835 - 1934] via Media Mail and which I received on June 15, 2007. Document No. 1835 (attached Document #1) is a request for a "Final Agency Legal Analysis: The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUE PRESENTED The issue presented is whether the complaint was properly dismissed as a complaint that alleges dissatisfaction with the processing of a previously filed complaint. BACKGROUND Complainant is a former employee of the Agency, having been employed as a Staff Scientist (Biologist), GS-13, at the Agency's National Institutes of Health, National Institute of Allergy and Infectious Diseases, in Bethesda, Maryland. Complainant has filed numerous EEO complaints against the Agency in relation to his employment, dating to 1998, including a mixed-case complaint regarding his termination by the Agency on May 15, 2006. The issues which led up to Complainant's termination were processed by the Agency in Agency Numbers NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0006.1 The mixed-case termination complaint was processed as NIH-NIAID-06-0001. Subsequently filed complaints include NIH-NIAID-0099-2008,2 NIH-0390-2007,3 and the present complaint. The Agency consolidated NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0001 for processing, and those complaints went before an EEOC Administrative Judge (AJ) in Hearing Numbers 531-2007-00002X and 531-2007-00065X. The AJ issued a decision on October 31, 2007, finding no discrimination, which the Agency implemented on December 5, 2007. Complainant appealed the decision in EEOC Appeal Number 0120081177, which is currently pending before the Commission. In July 2007, Complainant contacted the Agency to file an EEO complaint over what he claimed was the "conflict of interest" on the part of an Agency EEO Complaint Specialist and on the part of the EEO Director at NIH concerning actions taken during the processing of Complainant's mixed-case termination complaint. At issue was a letter Complainant obtained on June 15, 2007, during the discovery process for EEOC Hearing Numbers 531-2007-00002X and 531-2007-00065X. That letter, dated October 27, 2006, sent by the EEO Complaint Specialist to the Agency's EEO Director, stated that the investigation into NIH-NIAID-06-0001 was complete, and requested a final agency decision to be issued, with appeal rights to the Merit Systems Protection Board (MSPB). On November 14, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Asiatic Indian), age (64), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when: On June 11, 2007, pursuant to the [EEOC Administrative Judge's] "Second Memorandum and Order Compelling Discovery" dated May 1, 2007 [EEOC Case Nos. 531-2007-00002X, 531- 2007-00065X; Agency Case Nos. NIHNIAID 040008. NIHNIAID 050004, NIHNIAID 060001] [Agency Counsel] sent me 100 pages of documents [Document # 1835 - 1934] via Media Mail and which I received on June 15, 2007. Document No. 1835 (attached Document #1) is a request for a "Final Agency Decision, Re: Sisir K. Chattopadhyay, NIHNIAID 06-0001 (Complainant's termination only)" from [EEO Complaint Specialist] of DCMR, OEODM [Department of Complaint Management and Resolution, Office of Equal Opportunity and Diversity Management] to [Director, EEO Programs Group, ODM & EEO, ASAM, DHHS]. [EEO Specialist] copied his letter to [KR] a subordinate of [EEO Director]. On the basis of only that letter, it appears that [Director, Division of Equal Employment Opportunity Compliance, ASAM, OS, DHHS], dismissed my EEO pre-complaint against [Director, DIR, NIAID] and [Director, NIAID, NIH] on a Termination Claim and directed me to MSPB as having a termination which was a mixed case complaint. After the sudden departure of [SL] from her position as Director of DCMR, I have corresponded only with [Acting Director of DCMR] in that office. At one meeting scheduled to be with her, I refused to deal with [EEO Complaint Specialist] in her absence because of his unprofessional and rude conduct during an earlier meeting among the three of us. [EEO Complaint Specialist's] correspondence dated October 27, 2006 which came to my attention only on June 15, 2007, strongly supported my experience and feeling that he had been mishandling my complaints. On December 3, 2007, the Agency defined the Complaint as "on June 15, 2006, and continuing in 2006-2007, you were subjected to discrimination based on your national origin (Asiatic Indian), age (64), and reprisal for prior EEO activity when DCMR-OEODM representatives did not provide you with necessary forms and documentation for EEO complaint processing relevant to your removal." Complainant objected to the Agency's definition of his complaint, arguing instead that the date of the incident in question was really June 15, 2007 (not 2006), and that he intended his complaint to be about his belief that the EEO Complaint Specialist had no authority to request a final agency decision in NIH-NIAID-06-0001 when another individual was still the Acting Director of DCMR-OEODM. Complainant also argued that his claim was that EEO Complaint Specialist did not give him proper counseling for his termination claim and allowed an inadequate investigation of the termination claim. In a letter to the EEO Director dated December 11, 2007, he stated, in part, "[t]he inappropriate processing of my "Termination Claim" by DCMR-OEODM representatives was the main issue of this complaint. I provided a chronological account of the Agency's processing of my EEO complaints including the complaint regarding my termination claim... I also explained in detail my specific claim and provided many pertinent documents to substantiate my claims. I included the names of [the EEO Director at NIH] and [EEO Complaint Specialist] as the Responsible Management Officials. ... If you go through these documents, I am sure that you will realize, that my claims do not merely involve DCMR-OEODM representatives not providing me with the necessary form and documentation, but the overall wrongful processing of my EEO complaints, particularly that of my "Termination Claim". I trust that you will correctly include the incorrect handling of my termination claim by DCMR personnel," in the EEO investigation. The Agency repeatedly declined to re-define the complaint, and initiated an EEO investigation. At the	Sisir K. Chattopadhyay, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 0120093097 Hearing No. 531-2008-00388X Agency No. HHS-NIH-0366-2007 DECISION On July 10, 2009, Complainant filed an appeal from the Agency's June 5, 2009, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUE PRESENTED The issue presented is whether the complaint was properly dismissed as a complaint that alleges dissatisfaction with the processing of a previously filed complaint. BACKGROUND Complainant is a former employee of the Agency, having been employed as a Staff Scientist (Biologist), GS-13, at the Agency's National Institutes of Health, National Institute of Allergy and Infectious Diseases, in Bethesda, Maryland. Complainant has filed numerous EEO complaints against the Agency in relation to his employment, dating to 1998, including a mixed-case complaint regarding his termination by the Agency on May 15, 2006. The issues which led up to Complainant's termination were processed by the Agency in Agency Numbers NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0006.1 The mixed-case termination complaint was processed as NIH-NIAID-06-0001. Subsequently filed complaints include NIH-NIAID-0099-2008,2 NIH-0390-2007,3 and the present complaint. The Agency consolidated NIH-NIAID-04-0008, NIH-NIAID-05-0004, and NIH-NIAID-06-0001 for processing, and those complaints went before an EEOC Administrative Judge (AJ) in Hearing Numbers 531-2007-00002X and 531-2007-00065X. The AJ issued a decision on October 31, 2007, finding no discrimination, which the Agency implemented on December 5, 2007. Complainant appealed the decision in EEOC Appeal Number 0120081177, which is currently pending before the Commission. In July 2007, Complainant contacted the Agency to file an EEO complaint over what he claimed was the "conflict of interest" on the part of an Agency EEO Complaint Specialist and on the part of the EEO Director at NIH concerning actions taken during the processing of Complainant's mixed-case termination complaint. At issue was a letter Complainant obtained on June 15, 2007, during the discovery process for EEOC Hearing Numbers 531-2007-00002X and 531-2007-00065X. That letter, dated October 27, 2006, sent by the EEO Complaint Specialist to the Agency's EEO Director, stated that the investigation into NIH-NIAID-06-0001 was complete, and requested a final agency decision to be issued, with appeal rights to the Merit Systems Protection Board (MSPB). On November 14, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Asiatic Indian), age (64), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when: On June 11, 2007, pursuant to the [EEOC Administrative Judge's] "Second Memorandum and Order Compelling Discovery" dated May 1, 2007 [EEOC Case Nos. 531-2007-00002X, 531- 2007-00065X; Agency Case Nos. NIHNIAID 040008. NIHNIAID 050004, NIHNIAID 060001] [Agency Counsel] sent me 100 pages of documents [Document # 1835 - 1934] via Media Mail and which I received on June 15, 2007. Document No. 1835 (attached Document #1) is a request for a "Final Agency Decision, Re: Sisir K. Chattopadhyay, NIHNIAID 06-0001 (Complainant's termination only)" from [EEO Complaint Specialist] of DCMR, OEODM [Department of Complaint Management and Resolution, Office of Equal Opportunity and Diversity Management] to [Director, EEO Programs Group, ODM & EEO, ASAM, DHHS]. [EEO Specialist] copied his letter to [KR] a subordinate of [EEO Director]. On the basis of only that letter, it appears that [Director, Division of Equal Employment Opportunity Compliance, ASAM, OS, DHHS], dismissed my EEO pre-complaint against [Director, DIR, NIAID] and [Director, NIAID, NIH] on a Termination Claim and directed me to MSPB as having a termination which was a mixed case complaint. After the sudden departure of [SL] from her position as Director of DCMR, I have corresponded only with [Acting Director of DCMR] in that office. At one meeting scheduled to be with her, I refused to deal with [EEO Complaint Specialist] in her absence because of his unprofessional and rude conduct during an earlier meeting among the three of us. [EEO Complaint Specialist's] correspondence dated October 27, 2006 which came to my attention only on June 15, 2007, strongly supported my experience and feeling that he had been mishandling my complaints. On December 3, 2007, the Agency defined the Complaint as "on June 15, 2006, and continuing in 2006-2007, you were subjected to discrimination based on your national origin (Asiatic Indian), age (64), and reprisal for prior EEO activity when DCMR-OEODM representatives did not provide you with necessary forms and documentation for EEO complaint processing relevant to your removal." Complainant objected to the Agency's definition of his complaint, arguing instead that the date of the incident in question was really June 15, 2007 (not 2006), and that he intended his complaint to be about his belief that the EEO Complaint Specialist had no authority to request a final agency decision in NIH-NIAID-06-0001 when another individual was still the Acting Director of DCMR-OEODM. Complainant also argued that his claim was that EEO Complaint Specialist did not give him proper counseling for his termination claim and allowed an inadequate investigation of the termination claim. In a letter to the EEO Director dated December 11, 2007, he stated, in part, "[t]he inappropriate processing of my "Termination Claim" by DCMR-OEODM representatives was the main issue of this complaint. I provided a chronological account of the Agency's processing of my EEO complaints including the complaint regarding my termination claim... I also explained in detail my specific claim and provided many pertinent documents to substantiate my claims. I included the names of [the EEO Director at NIH] and [EEO Complaint Specialist] as the Responsible Management Officials. ... If you go through these documents, I am sure that you will realize, that my claims do not merely involve DCMR-OEODM representatives not providing me with the necessary form and documentation, but the overall wrongful processing of my EEO complaints, particularly that of my "Termination Claim". I trust that you will correctly include the incorrect handling of my termination claim by DCMR personnel," in the EEO investigation. The Agency repeatedly declined to re-define the complaint, and initiated an EEO investigation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On March 5, 2009, the Agency submitted a Motion to Dismiss on the grounds that Complainant's complaint alleged dissatisfaction with the processing of a previously filed complaint. On March 13, 2009, the Agency submitted its Prehearing Statement and Motion for a Decision without a Hearing, in which it argued that a decision finding no discrimination should be issued. On March 16, 2009, Complainant opposed the Agency's Motion to Dismiss, arguing that the present complaint was improperly processed and that he has consistently raised his dissatisfaction with the agency's processing with the proper officials. He did not address the Agency's argument that, even had it accepted his complaint as he wrote it in NIH-0366-2007, that complaint would still allege dissatisfaction with the processing of NIH-NIAID-06-0001. In a bench decision dated May 6, 2009, the AJ assigned to the case issued a decision dismissing Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(8), as a complaint alleging dissatisfaction with the processing of a previously filed complaint.4 The AJ noted the broader allegation of Complainant's complaint, that it encompassed the processing of the complaint including his termination claim (NIH-NIAID-06-0001). The AJ also noted that when that case was before him in 531-2007-00002X and 531-2007-00065X, Complainant had raised his concerns about the processing of the mixed-case issue, and his belief that the Agency should have allowed him to file an independent complaint, rather than amend the termination issue to the previously raised issues of a 5-day suspension, unacceptable performance evaluation, and the notice of proposed removal. The AJ found that Complainant's issues with his dissatisfaction over the processing of his termination claim had been addressed, and Complainant should again raise those objections in his appeal to the Commission for that case (EEOC Appeal No. 0120081177). The Agency subsequently issued a final order adopting the AJ's dismissal of Complainant's complaint. CONTENTIONS ON APPEAL Complainant submitted a brief on appeal in which he argued that the Agency and the AJ had improperly defined his present complaint, failing to capture the essence of what he alleged, and requesting that the complaint be remanded for further investigation and processing. The Agency did not submit any brief or statement in opposition to Complainant's appeal. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the 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, at Chapter 9, § VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-23, 5-25 to 5-26 (Nov. 9, 1999). After a thorough review of Complainant's voluminous brief and numerous attachments, we find that his claim that the Agency mis-idenitifed the issue he is alleging in the present complaint is valid. The definition of the complaint in the Agency's December 3, 2007, acceptance letter does not capture fully what Complainant was trying to allege regarding the processing by various EEO officials of his termination claim in NIH-NIAID-06-0001. Complainant properly raised his objections to the definition of his complaint at all stages of the processing in NIH-0366-2007. However, due to his objections to the Agency's definition of his complaint, the Agency representative at hearing and the AJ assigned to the case looked more closely at what Complainant was alleging. In its Motion to Dismiss, the Agency clarified that Complainant was attempting to claim that the Agency EEO officials improperly processed his mixed-case termination claim by amending it to NIH-NIAID-06-0001. In fact, in his December 11, 2007, letter to the Agency EEO Director, Complainant specified that the instant complaint pertained to "the inappropriate processing of my 'Termination Claim' by DCMR-OEODM representatives" and to "the overall wrongful processing of my EEO complaints, particularly that of my 'Termination Claim.'" As such, we find that the AJ properly dismissed Complainant's instant complaint, Agency Number NIH-0366-2007, as a complaint alleging dissatisfaction with the processing of a previously filed complaint, namely that of NIH-NIAID-06-0001. We note that the appeal regarding NIH-NIAID-06-0001 is currently pending before the Commission in EEOC Appeal No. 0120081177, and that the record in that case reflects that Complainant consistently objected to the Agency's processing of his termination claim in that process. Complainant's objections to the processing of his mixed-case termination complaint will be addressed in that context. CONCLUSION Therefore, based on a thorough review of the record and the contentions of Complainant on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order. 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 18, 2011 Date 1 Agency Number NIH-NIAID-06-0006 is currently pending before the Commission in EEOC Appeal No. 0120091142. 2 This complaint was the subject of Chattopadhyay v. Department of Health and Human Services, EEOC Appeal No. 0120082445 (September 9, 2010). 3 This complaint was the subject of Chattopadhyay v. Department of Health and Human Services, EEOC Appeal No. 0120081186 (February 26, 2010). 4 Although the AJ's cover letter stated that the complaint was being dismissed pursuant to a settlement agreement, the AJ's decision makes clear that this is not the case. We find the misstatement to be harmless error. ?? ?? ?? ??	[ "Chattopadhyay v. Department of Health and Human Services, EEOC Appeal No. 0120082445 (September 9, 2010)", "Chattopadhyay v. Department of Health and Human Services, EEOC Appeal No. 0120081186 (February 26, 2010)", "29 C.F.R. § 1614.405(a)", "29 C.F.R. § 1614.107(a)", "29 C.F.R. § 1614.109(g)", "29 C.F.R...	[ -0.08942364156246185, 0.06819605827331543, -0.01079196110367775, 0.025527408346533775, 0.003536585485562682, 0.06308106333017349, 0.0287218876183033, -0.007461706642061472, -0.01595916412770748, 0.009269273839890957, 0.05004977807402611, 0.02460894174873829, -0.019620539620518684, -0.03577...
88	https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001981.pdf	2023001981.pdf	PDF	application/pdf	17,276	Anibal L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.	February 9, 2023	Appeal Number: 2023001981 Background: At the time of e vents giving rise to this complaint, Complainant was employed by the Agency as a City Carrier , 01-Q, at the Pine Bluff Post Office in Pine Bluff, Arkansas. On January 24, 2023, Complainant filed a for mal EEO complaint alleging that the Agency subjected h im to discrimination , including harassment/a hostile work environment on the bases of race, sex, and /or reprisal for prior protected EEO activity when: 1. On or around October 14, 2022, Complainant becam e aware that co workers were allowed to work after they had approved leave for that day, but on August 15, 2022, he was made to take the leave. 2. On or around October 19, 2022, Complainant was instructed to submit a written statement in order to not be made to work on his off-day. The Agency dismissed both claims on procedural grounds. Claim 1 was dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO Counselor, and Claim 2 was dismissed for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). Legal Analysis: The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request N o. 05970852 (Feb. 11, 1999). Thus, the time limitatio n is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)). On August 15, 2022, Complainant clocked into work at his usual time because he forgot that he requested and was approved for 2 hours of annual leave in the morning. A supervisor reminded Complainant about hi s leave request and instructed him to clock out and r eturn in 2 hours. The supervisor denied Complainant ’s request to work the 2 hours instead. When Complainant retur ned, the Union Steward told Complainant that the Post master said Complainant asked to burn his leave. The Postmaster also told Complainant that he would still have to work overtime that evening. In his formal complaint, Complainant recounts that on October 11, 2022, one of his coworkers clocked in to work because she for got that she previously reque sted and was granted 8 hours of annual leave th at day. Although the c oworker failed to cancel her leave request, Complainant contends Management allowed her to remain cloc ked in and to work her full shift. Complainant states that the same thing happened on October 14, 2022, w hen anot her coworker was permitted to work his full shift, even though he originally requested the day off and forgot to cancel his leave request. Both coworkers, were City Carriers at Pine Bluff Post Office like Complainant, however, neither was a membe r of Complainant’ s protect ed classes . It is well established that a complainant may not have a reasonable suspicion of discrimination until the y become aware that the agency treat ed a coworker outside complainant's protected class(es) differently. See e. g., Swanigan v. United Sta tes Postal Serv. , EEOC Appeal No. 01A33469 (Mar. 31, 2004) . This holds true even where the different treatment occur s more than 45 days after the alleged discriminatory act. See, e.g., Lampi v. Dep’t of Tra nsport., EEOC Appeal No. 01A62261 (Jun. 16, 2006) (complainant lear ned that she lost pay retention rights due to Agency failure to timely process her selection papers, she was later told that management made a concerted effort to timely process the selecti on papers for two male employees, who avoided a si milar loss, triggering reasonable suspicion). We find that Complain ant did not reasonably suspect that the August 15, 2022 incident was discriminatory until October 11, 2022, when he became aware that a co mparator employee was treated differently under si milar circumstances . As reasonable suspicion was triggered the limitation p eriod on October 11, 2022, the latest possible date for Complainant to timely initia te EEO contact for Claim 1 fell on November 25, 2022. However, according to the EEO Counselor’s Report, Complainant did not initiate EEO contact for the instant complaint until December 22, 2022. On appeal, Complainant reiterates his assertion that the Agency ’s act ions in Claim 1 were discriminatory . However , he does not dispute t hat December 22, 2022 was the date of initial EEO contact for this matter , nor does he offer any explanation for the delay. Claim 1 was properly dis missed pursuant to 29 C.F.R. § 1614.107(a)(2). Failure to State a Claim Under the regulations set forth at 29 C.F.R. Par t 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that they have been discriminated against by that agency because of race, color, religion, sex, national o rigin, age or disabling condition. 29 C .F.R. §§ 1614.103, .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 privil ege of employm ent for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr . 21, 1994). If the complainant cannot establish that they are aggrieved, the agency shall dismiss the ir complaint for failure to state a claim. 29 C. F.R. § 1614.107(a)(1). For Claim 2, the Agen cy aptly observe s that Co mplainant does not claim to have been forced to work on his off -day. Rather, unlike his coworkers, Complainant had to write a statement justifying why he should not come in to work on his off -day. The Commission has held that a claim of harassment , like the one at issue, may survive if it alleges conduct th at is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993). Moreover, for claims of reprisal , we note that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the t erms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv. , EEOC R equest No. 05980410 (Nov. 4, 1999) . Instead, claims based on statutory retaliation clauses ar e reviewed “with a broad view of coverage. Under Commis sion policy, 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). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations , and harassment are actionable. Enforcement G uidance on Retaliation and Related Issues , EEOC N otice No. 915.004 § II. B. (Aug. 25, 2016). In the instant case, we find that the allegation in Claim 2 describ es an isolated incident and there is not an indication that , as alleged, it was sufficiently severe or per vasive to state a viable claim of harassment in violation of Title VII. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), see also, e.g. Vaughn L. v. Dep’t of Veterans Aff., EEOC Appeal No. 2022003742 (Sept. 28, 2022) (single incident where supervisor threatened to charge the complainant as absent without leave (“AWOL”) if he did not report back to work insufficient to state a claim of harassment) , Elfrieda R. v. United States Postal Serv. , EEOC Appeal No. 2022000085 (Dec. 21, 2021) (single incident where supervisor yelled at the complainant about her work duties and accused her of “stealing time” causing the compla inant to feel “shook up” failed to state a claim of harassment or reprisal ).In addition, Claim 2 , was also not r easonably likely to deter Complainant or other s from engaging in protected EEO activity. Even considering the broad application of EEO cover age in claims of reprisal, Claim 2 was properly dismissed for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). Dissatisfaction with Informal EEO Processing The majority of Complainant ’s appeal concerns his dissatisfaction with the proce ssing of Agency Case No. 4G730014622 (“Prior EEO Complaint”) , which Complainant initiat ed on or about September 29, 2022, and formally filed on October 17, 2022. He detail s lack of follow up and discrepancies in communications by EEO Counselor. On or about November 2, 2022, the Agency ’s District EEO Manager called Complainant. They discuss ed his dissatisfac tion with EEO Counselor ’s work on his complaint, but, as District EEO Manager allegedly failed to inform Complainant that the phone call was part of an inquiry into his allegations, Complainant states he did not provide all of the relevan t details. Complainant emphasizes that ne ither EEO Couns elor nor EEO Manager co uld explain how they did not receive his October 17, 2022 forma l complaint, and he ultimate ly had to find contact information for the Agency ’s national EEO processing office, where an official in structed him to re -file Prior EEO Complaint. The documentation provided by Complainant indicates tha t the Agency acted in accordance with our regulati ons and the previously discussed guidance in EEO MD-110. On November 15, 2022, the Agen cy issued a formal response (“Agency Respons e”), conclud ing that the EEO Counselor did not violate EEOC regulations when processing P rior EEO Complaint. The Agency Resp onse also informed Complainant that both his allegation of dissatisfaction with the pro cessing of P rior EEO Complaint and the Agency Response would be made part of the P rior EEO Complaint case file. Moreover, the Agency Response notified Complainant tha t he could challenge the Agency’s Response after the investigation of Prior EEO Complaint co ncluded. As Prior EEO Complaint is not before us, we cannot adjudicate Complainant ’s allegations concerning the processing of Prior EEO Complaint. If Complainant want s to pursue hi s claim of dissatisfaction regarding the processing of Prior EEO Compla int, be must do so in the context of Prior EEO Complaint and in accordance with EEOC regulations. When the Agency ’s investigation into Prior EEO Complaint concludes, the Agency will iss ue a copy of the Report of Investigation ( “ROI”) and notify Complainant of his right to request a hearing before an EEOC admin istrative judge ( “AJ”) or receive a Final Agency Decision (“FAD ”). If Complainant elects a hearing before an AJ, he can notify the AJ of his dissatisfaction over the processing of Prior EEO Complaint. I f Complainant requests a Final Agency Decision, he will have an opportunity to raise his dissatisfaction with the processing of Prior EEO Complaint with the Commission by submitting an appeal after the Agency issues the FAD.	Anibal L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023001981 Agency No. 4G730004023 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC ” or “ Commission ”) from the Agency's February 9, 2023, dismiss al of his 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 At the time of e vents giving rise to this complaint, Complainant was employed by the Agency as a City Carrier , 01-Q, at the Pine Bluff Post Office in Pine Bluff, Arkansas. On January 24, 2023, Complainant filed a for mal EEO complaint alleging that the Agency subjected h im to discrimination , including harassment/a hostile work environment on the bases of race, sex, and /or reprisal for prior protected EEO activity when: 1. On or around October 14, 2022, Complainant becam e aware that co workers were allowed to work after they had approved leave for that day, but on August 15, 2022, he was made to take the leave. 2. On or around October 19, 2022, Complainant was instructed to submit a written statement in order to not be made to work on his off-day. The Agency dismissed both claims on procedural grounds. Claim 1 was dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO Counselor, and Claim 2 was dismissed for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). ANALYSIS AND FINDI NGS Timeliness 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 §1614.105. Under 29 C.F.R. § 1614.105(a)(1) , comp laints 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request N o. 05970852 (Feb. 11, 1999). Thus, the time limitatio n is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)). On August 15, 2022, Complainant clocked into work at his usual time because he forgot that he requested and was approved for 2 hours of annual leave in the morning. A supervisor reminded Complainant about hi s leave request and instructed him to clock out and r eturn in 2 hours. The supervisor denied Complainant ’s request to work the 2 hours instead. When Complainant retur ned, the Union Steward told Complainant that the Post master said Complainant asked to burn his leave. The Postmaster also told Complainant that he would still have to work overtime that evening. In his formal complaint, Complainant recounts that on October 11, 2022, one of his coworkers clocked in to work because she for got that she previously reque sted and was granted 8 hours of annual leave th at day. Although the c oworker failed to cancel her leave request, Complainant contends Management allowed her to remain cloc ked in and to work her full shift. Complainant states that the same thing happened on October 14, 2022, w hen anot her coworker was permitted to work his full shift, even though he originally requested the day off and forgot to cancel his leave request. Both coworkers, were City Carriers at Pine Bluff Post Office like Complainant, however, neither was a membe r of Complainant’ s protect ed classes . It is well established that a complainant may not have a reasonable suspicion of discrimination until the y become aware that the agency treat ed a coworker outside complainant's protected class(es) differently. See e. g., Swanigan v. United Sta tes Postal Serv. , EEOC Appeal No. 01A33469 (Mar. 31, 2004) . This holds true even where the different treatment occur s more than 45 days after the alleged discriminatory act. See, e.g., Lampi v. Dep’t of Tra nsport., EEOC Appeal No. 01A62261 (Jun. 16, 2006) (complainant lear ned that she lost pay retention rights due to Agency failure to timely process her selection papers, she was later told that management made a concerted effort to timely process the selecti on papers for two male employees, who avoided a si milar loss, triggering reasonable suspicion). We find that Complain ant did not reasonably suspect that the August 15, 2022 incident was discriminatory until October 11, 2022, when he became aware that a co mparator employee was treated differently under si milar circumstances . As reasonable suspicion was triggered the limitation p eriod on October 11, 2022, the latest possible date for Complainant to timely initia te EEO contact for Claim 1 fell on November 25, 2022. However, according to the EEO Counselor’s Report, Complainant did not initiate EEO contact for the instant complaint until December 22, 2022. On appeal, Complainant reiterates his assertion that the Agency ’s act ions in Claim 1 were discriminatory . However , he does not dispute t hat December 22, 2022 was the date of initial EEO contact for this matter , nor does he offer any explanation for the delay. Claim 1 was properly dis missed pursuant to 29 C.F.R. § 1614.107(a)(2). Failure to State a Claim Under the regulations set forth at 29 C.F.R. Par t 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that they have been discriminated against by that agency because of race, color, religion, sex, national o rigin, age or disabling condition. 29 C .F.R. §§ 1614.103, .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 privil ege of employm ent for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr . 21, 1994). If the complainant cannot establish that they are aggrieved, the agency shall dismiss the ir complaint for failure to state a claim. 29 C. F.R. § 1614.107(a)(1). For Claim 2, the Agen cy aptly observe s that Co mplainant does not claim to have been forced to work on his off -day. Rather, unlike his coworkers, Complainant had to write a statement justifying why he should not come in to work on his off -day. The Commission has held that a claim of harassment , like the one at issue, may survive if it alleges conduct th at is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993). Moreover, for claims of reprisal , we note that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the t erms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv. , EEOC R equest No. 05980410 (Nov. 4, 1999) . Instead, claims based on statutory retaliation clauses ar e reviewed “with a broad view of coverage. Under Commis sion policy, 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). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations , and harassment are actionable. Enforcement G uidance on Retaliation and Related Issues , EEOC N otice No. 915.004 § II. B. (Aug. 25, 2016). In the instant case, we find that the allegation in Claim 2 describ es an isolated incident and there is not an indication that , as alleged, it was sufficiently severe or per vasive to state a viable claim of harassment in violation of Title VII. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), see also, e.g. Vaughn L. v. Dep’t of Veterans Aff., EEOC Appeal No. 2022003742 (Sept. 28, 2022) (single incident where supervisor threatened to charge the complainant as absent without leave (“AWOL”) if he did not report back to work insufficient to state a claim of harassment) , Elfrieda R. v. United States Postal Serv. , EEOC Appeal No. 2022000085 (Dec. 21, 2021) (single incident where supervisor yelled at the complainant about her work duties and accused her of “stealing time” causing the compla inant to feel “shook up” failed to state a claim of harassment or reprisal ).In addition, Claim 2 , was also not r easonably likely to deter Complainant or other s from engaging in protected EEO activity. Even considering the broad application of EEO cover age in claims of reprisal, Claim 2 was properly dismissed for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). Dissatisfaction with Informal EEO Processing The majority of Complainant ’s appeal concerns his dissatisfaction with the proce ssing of Agency Case No. 4G730014622 (“Prior EEO Complaint”) , which Complainant initiat ed on or about September 29, 2022, and formally filed on October 17, 2022. He detail s lack of follow up and discrepancies in communications by EEO Counselor. On or about November 2, 2022, the Agency ’s District EEO Manager called Complainant. They discuss ed his dissatisfac tion with EEO Counselor ’s work on his complaint, but, as District EEO Manager allegedly failed to inform Complainant that the phone call was part of an inquiry into his allegations, Complainant states he did not provide all of the relevan t details. Complainant emphasizes that ne ither EEO Couns elor nor EEO Manager co uld explain how they did not receive his October 17, 2022 forma l complaint, and he ultimate ly had to find contact information for the Agency ’s national EEO processing office, where an official in structed him to re -file Prior EEO Complaint. The documentation provided by Complainant indicates tha t the Agency acted in accordance with our regulati ons and the previously discussed guidance in EEO MD-110. On November 15, 2022, the Agen cy issued a formal response (“Agency Respons e”), conclud ing that the EEO Counselor did not violate EEOC regulations when processing P rior EEO Complaint. The Agency Resp onse also informed Complainant that both his allegation of dissatisfaction with the pro cessing of P rior EEO Complaint and the Agency Response would be made part of the P rior EEO Complaint case file. Moreover, the Agency Response notified Complainant tha t he could challenge the Agency’s Response after the investigation of Prior EEO Complaint co ncluded. As Prior EEO Complaint is not before us, we cannot adjudicate Complainant ’s allegations concerning the processing of Prior EEO Complaint. If Complainant want s to pursue hi s claim of dissatisfaction regarding the processing of Prior EEO Compla int, be must do so in the context of Prior EEO Complaint and in accordance with EEOC regulations. When the Agency ’s investigation into Prior EEO Complaint concludes, the Agency will iss ue a copy of the Report of Investigation ( “ROI”) and notify Complainant of his right to request a hearing before an EEOC admin istrative judge ( “AJ”) or receive a Final Agency Decision (“FAD ”). If Complainant elects a hearing before an AJ, he can notify the AJ of his dissatisfaction over the processing of Prior EEO Complaint. I f Complainant requests a Final Agency Decision, he will have an opportunity to raise his dissatisfaction with the processing of Prior EEO Complaint with the Commission by submitting an appeal after the Agency issues the FAD. CONCLUSION Accordingly, the A gency ’s decision dismissing Complainant’ s complain t is AFFIRMED . STATEMENT O F RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, r econs ider this appellate decision if Complainant or the Agency submits a written request tha t contains arguments or evidence that tend to establish that: 1. The appellat e decision involved a clearly erroneous interpretation of material fact or law; or 2. Th e appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration mus t be filed with EEOC’s O ffice 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 s upport 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 recei pt of another party’s request for reconsideration within which to submit a brief or statemen t 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 br ief in support of his or her request, via the EEOC Pu blic Portal, which can b e found at https://pu blicp ortal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her re quest and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 2 0013, 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 reconsider ation must be submitted in digital format via the EEOC’s Federal Sector EEO P ortal (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 Compl ainant files his or her request via the EEOC Public Portal, in which case no pr oof of service is required. Failure to file within the 30 -d ay time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating ci rcumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commissio n wil l 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 CIVI L ACTION (S0610) You have the right to file a civil action in an appropriate United St ates District Court within ninety (90) calendar days from the date that you receive this deci sion. 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 perso n by his or her full name and official title. Failure to do so may result in the dism issal 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 req uest 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 withou t paying these fees or costs. Similarly, if you cannot afford an attorney to re present 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 fo r 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 Fe deral Operations August 14, 2023 Date	[ "Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012)", "Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr . 21, 1994)", "Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)", "Title VII. See Phillips v. Dep't of Veterans Affairs, EEOC...	[ -0.05583347752690315, 0.06894607096910477, 0.01060721930116415, 0.05197235941886902, -0.03866899013519287, 0.018531126901507378, 0.01718936488032341, -0.08470460772514343, 0.005055056884884834, 0.031170370057225227, 0.03495989739894867, -0.03901557996869087, -0.02324880100786686, -0.007780...
89	https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985928_r.txt	01985928_r.txt	TXT	text/plain	23,836		June 30, 1998	Appeal Number: 01985928 Background: Appellant initiated contact with an EEO Counselor on October 9, 1997, with regard to Agency No. 12-98-010. In a formal EEO complaint dated December 1, 1997, appellant alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. On September 4, 1997, he was reassigned from his position as a Team Leader/Customer Service to a Team Leader/Collections. 2. On September 10, 1997, he realized that management in the Fresno District Office had harassed him from January 1993 through July 1997, in the following manner: (a) He was not selected in January-February 1993, for a GS-12 position in Finance. (b) Between May 1994-96, management solicited negative comments and lies about his performance from his coworkers to discredit his candidacy for a GS-12 supervisory position. (c) He was not selected sometime between April and July 1997, for a Supervisory Loan Specialist position, GS-13, advertised under Vacancy Announcement No. 97-FRLSC-02. (d) On April 1, 1997, and August 1, 1997, his acting supervisory duties were removed, and he was reassigned to a Team Leader position. 3. On October 27, 1997, it was announced that an individual appellant identified during the EEO counseling process as having allegedly discriminated against him was appointed as Acting Supervisor while appellant's Supervisor was away. In its final decision, the agency dismissed allegation 2 of 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 October 9, 1997, was more than 45 days after each of the alleged actions in allegation 2 occurred. The agency further determined that allegation 2 does not constitute a continuing violation because each incident was discrete and isolated, and appellant's awareness of the alleged discrimination should have been triggered. Allegation 3 was dismissed on the grounds that it failed to state a claim. The agency determined that appellant failed to established that he had been harmed with regard to a term, condition, or privilege of his employment by the designation of this individual as his possible acting supervisor. Allegation 1 was accepted for investigation. With regard to Agency No. 03-98-031, the agency stated that appellant initiated EEO contact on February 4, 1998. On February 23, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. The agency failed to handle his grievance filed on November 5, 1997, in accordance with the Master Agreement or standard operating procedure. 2. On or about November 18, 1997, he received an overall summary rating of Exceeds Fully Successful on his PMAS rating for the period October 1, 1996 through September 30, 1997. 3. On December 8, 1997, an Agency Manager was loud and combative towards him. The Manager also threatened to take away appellant's GS-12 rating. 4. On December 10, 1997, appellant's verbal request for a transfer was denied while other requests for transfers made by female employees were granted. 5. On January 28, 1998, appellant learned that he was no longer designated as an Acting Supervisor. 6. Between December 1997-January 1998, appellant's Supervisor began to scrutinize his work more closely than other employees and made him correct minor errors that other employees were not required to make. In its final decision with regard to this complaint, the agency dismissed allegation 1 on the grounds of failure to state a claim and untimely EEO contact. Allegations 2-4 were also dismissed on the grounds of untimely EEO contact. The agency determined with regard to allegation 1 that this allegation constitutes an attempt to collaterally attack an agency determination regarding the propriety of appellant's grievance, and therefore is in the wrong forum. As for allegations 1-4, the agency determined that appellant's EEO contact of February 4, 1998, was more than 45 days after each of the alleged incidents occurred. The agency further determined that the alleged actions do not constitute a continuing violation. According to the agency, the incidents were discrete and isolated, and should have triggered appellant's awareness of the alleged discrimination. The agency stated that appellant did not show a nexus between the timely actions and the incidents at issue, or that these actions were taken by the same agency officials. On appeal, appellant contends that he was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant states that he has been with the agency since 1990, and there have been no meetings where EEO Counselors or management discussed the EEO process. With regard to allegation 2 of Agency No. 12-98-010, appellant states that any of the incidents by itself would not trigger awareness of gender bias, but rather the series of events caused him to suspect sex discrimination. Appellant claims that the EEO Office advised him that this complaint and his second complaint would allege a continuing violation. With regard to allegation 3 of Agency No. 12-98-010, appellant argues that the designation of this female employee as Acting Supervisor over him allowed that person to gain supervisory experience and diminished his stature in the office. Appellant claims that this female employee will have an unfair advantage over him for any supervisory positions that become available. As for allegation 1 of Agency No. 03-98-031, appellant contends that the grievance procedure was circumvented to ensure that a female employee would not be reprimanded. Appellant claims that the grievance procedure was circumvented with regard to his grievance but was not circumvented in grievances filed by female employees. According to appellant, allegations 1-4 of Agency No. 03-98-031 were discussed with the EEO Counselor during the counseling process for Agency No. 12-98-010, and he was advised by the EEO Counselor to wait until after the processing of the first complaint was completed before pursuing his second 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 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. 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). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. The allegation that was dismissed by the agency on the grounds of untimely EEO contact in Agency No. 12-98-010 occurred over the period of January 1993 - August 1, 1997. Appellant did not initiate contact with an EEO Counselor until October 9, 1997, with regard to Agency No. 12-98-010, after the expiration of the 45-day limitation period. However, we note that appellant claims that he was unaware of the 45-day limitation period for contacting an EEO Counselor. The record does not contain any argument or evidence from the agency to establish that EEO posters setting forth the 45-day limitation period for contacting an EEO Counselor were posted at appellant's work facility in a conspicuous location. We find that a supplemental investigation is necessary in order to determine whether appellant had constructive notice of the time period for contacting an EEO Counselor. 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.<1> ISSUES PRESENTED 1. The first issue presented is whether the agency properly dismissed allegation 2 of Agency No. 12-98-010 on the grounds of untimely EEO contact, and allegation 3 on the grounds of failure to state a claim. 2. The second issue presented is whether the agency properly dismissed allegation 1 of Agency No. 03-98-031 on the grounds of failure to state a claim and untimely EEO contact, and allegations 2-4 on the grounds of untimely EEO contact. BACKGROUND Appellant initiated contact with an EEO Counselor on October 9, 1997, with regard to Agency No. 12-98-010. In a formal EEO complaint dated December 1, 1997, appellant alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. On September 4, 1997, he was reassigned from his position as a Team Leader/Customer Service to a Team Leader/Collections. 2. On September 10, 1997, he realized that management in the Fresno District Office had harassed him from January 1993 through July 1997, in the following manner: (a) He was not selected in January-February 1993, for a GS-12 position in Finance. (b) Between May 1994-96, management solicited negative comments and lies about his performance from his coworkers to discredit his candidacy for a GS-12 supervisory position. (c) He was not selected sometime between April and July 1997, for a Supervisory Loan Specialist position, GS-13, advertised under Vacancy Announcement No. 97-FRLSC-02. (d) On April 1, 1997, and August 1, 1997, his acting supervisory duties were removed, and he was reassigned to a Team Leader position. 3. On October 27, 1997, it was announced that an individual appellant identified during the EEO counseling process as having allegedly discriminated against him was appointed as Acting Supervisor while appellant's Supervisor was away. In its final decision, the agency dismissed allegation 2 of 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 October 9, 1997, was more than 45 days after each of the alleged actions in allegation 2 occurred. The agency further determined that allegation 2 does not constitute a continuing violation because each incident was discrete and isolated, and appellant's awareness of the alleged discrimination should have been triggered. Allegation 3 was dismissed on the grounds that it failed to state a claim. The agency determined that appellant failed to established that he had been harmed with regard to a term, condition, or privilege of his employment by the designation of this individual as his possible acting supervisor. Allegation 1 was accepted for investigation. With regard to Agency No. 03-98-031, the agency stated that appellant initiated EEO contact on February 4, 1998. On February 23, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. The agency failed to handle his grievance filed on November 5, 1997, in accordance with the Master Agreement or standard operating procedure. 2. On or about November 18, 1997, he received an overall summary rating of Exceeds Fully Successful on his PMAS rating for the period October 1, 1996 through September 30, 1997. 3. On December 8, 1997, an Agency Manager was loud and combative towards him. The Manager also threatened to take away appellant's GS-12 rating. 4. On December 10, 1997, appellant's verbal request for a transfer was denied while other requests for transfers made by female employees were granted. 5. On January 28, 1998, appellant learned that he was no longer designated as an Acting Supervisor. 6. Between December 1997-January 1998, appellant's Supervisor began to scrutinize his work more closely than other employees and made him correct minor errors that other employees were not required to make. In its final decision with regard to this complaint, the agency dismissed allegation 1 on the grounds of failure to state a claim and untimely EEO contact. Allegations 2-4 were also dismissed on the grounds of untimely EEO contact. The agency determined with regard to allegation 1 that this allegation constitutes an attempt to collaterally attack an agency determination regarding the propriety of appellant's grievance, and therefore is in the wrong forum. As for allegations 1-4, the agency determined that appellant's EEO contact of February 4, 1998, was more than 45 days after each of the alleged incidents occurred. The agency further determined that the alleged actions do not constitute a continuing violation. According to the agency, the incidents were discrete and isolated, and should have triggered appellant's awareness of the alleged discrimination. The agency stated that appellant did not show a nexus between the timely actions and the incidents at issue, or that these actions were taken by the same agency officials. On appeal, appellant contends that he was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant states that he has been with the agency since 1990, and there have been no meetings where EEO Counselors or management discussed the EEO process. With regard to allegation 2 of Agency No. 12-98-010, appellant states that any of the incidents by itself would not trigger awareness of gender bias, but rather the series of events caused him to suspect sex discrimination. Appellant claims that the EEO Office advised him that this complaint and his second complaint would allege a continuing violation. With regard to allegation 3 of Agency No. 12-98-010, appellant argues that the designation of this female employee as Acting Supervisor over him allowed that person to gain supervisory experience and diminished his stature in the office. Appellant claims that this female employee will have an unfair advantage over him for any supervisory positions that become available. As for allegation 1 of Agency No. 03-98-031, appellant contends that the grievance procedure was circumvented to ensure that a female employee would not be reprimanded. Appellant claims that the grievance procedure was circumvented with regard to his grievance but was not circumvented in grievances filed by female employees. According to appellant, allegations 1-4 of Agency No. 03-98-031 were discussed with the EEO Counselor during the counseling process for Agency No. 12-98-010, and he was advised by the EEO Counselor to wait until after the processing of the first complaint was completed before pursuing his second 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 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. 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). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. The allegation that was dismissed by the agency on the grounds of untimely EEO contact in Agency No. 12-98-010 occurred over the period of January 1993 - August 1, 1997. Appellant did not initiate contact with an EEO Counselor until October 9, 1997, with regard to Agency No. 12-98-010, after the expiration of the 45-day limitation period. However, we note that appellant claims that he was unaware of the 45-day limitation period for contacting an EEO Counselor. The record does not contain any argument or evidence from the agency to establish that EEO posters setting forth the 45-day limitation period for contacting an EEO Counselor were posted at appellant's work facility in a conspicuous location. We find that a supplemental investigation is necessary in order to determine whether appellant had constructive notice of the time period for contacting an EEO Counselor. Accordingly, the agency's decision to dismiss allegation 2 of Agency No. 12-98-010 on the grounds of untimely EEO contact is VACATED.	Daniel J. Urdesich, ) Appellant, ) ) v. ) Appeal No. 01985928 ) Agency Nos. 12-98-010 Aida Alvarez, ) 03-98-031 Administrator, ) Small Business Administration, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from two final decisions of the agency concerning his complaints 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 issued in Agency No. 12-98-010 on June 30, 1998, and the final agency decision in Agency No. 03-98-031 was issued on July 6, 1998. The appeal was postmarked July 28, 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.<1> ISSUES PRESENTED 1. The first issue presented is whether the agency properly dismissed allegation 2 of Agency No. 12-98-010 on the grounds of untimely EEO contact, and allegation 3 on the grounds of failure to state a claim. 2. The second issue presented is whether the agency properly dismissed allegation 1 of Agency No. 03-98-031 on the grounds of failure to state a claim and untimely EEO contact, and allegations 2-4 on the grounds of untimely EEO contact. BACKGROUND Appellant initiated contact with an EEO Counselor on October 9, 1997, with regard to Agency No. 12-98-010. In a formal EEO complaint dated December 1, 1997, appellant alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. On September 4, 1997, he was reassigned from his position as a Team Leader/Customer Service to a Team Leader/Collections. 2. On September 10, 1997, he realized that management in the Fresno District Office had harassed him from January 1993 through July 1997, in the following manner: (a) He was not selected in January-February 1993, for a GS-12 position in Finance. (b) Between May 1994-96, management solicited negative comments and lies about his performance from his coworkers to discredit his candidacy for a GS-12 supervisory position. (c) He was not selected sometime between April and July 1997, for a Supervisory Loan Specialist position, GS-13, advertised under Vacancy Announcement No. 97-FRLSC-02. (d) On April 1, 1997, and August 1, 1997, his acting supervisory duties were removed, and he was reassigned to a Team Leader position. 3. On October 27, 1997, it was announced that an individual appellant identified during the EEO counseling process as having allegedly discriminated against him was appointed as Acting Supervisor while appellant's Supervisor was away. In its final decision, the agency dismissed allegation 2 of 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 October 9, 1997, was more than 45 days after each of the alleged actions in allegation 2 occurred. The agency further determined that allegation 2 does not constitute a continuing violation because each incident was discrete and isolated, and appellant's awareness of the alleged discrimination should have been triggered. Allegation 3 was dismissed on the grounds that it failed to state a claim. The agency determined that appellant failed to established that he had been harmed with regard to a term, condition, or privilege of his employment by the designation of this individual as his possible acting supervisor. Allegation 1 was accepted for investigation. With regard to Agency No. 03-98-031, the agency stated that appellant initiated EEO contact on February 4, 1998. On February 23, 1998, appellant filed a formal EEO complaint wherein he alleged that he had been discriminated against on the bases of his sex (male) and in reprisal for his previous EEO activity when: 1. The agency failed to handle his grievance filed on November 5, 1997, in accordance with the Master Agreement or standard operating procedure. 2. On or about November 18, 1997, he received an overall summary rating of Exceeds Fully Successful on his PMAS rating for the period October 1, 1996 through September 30, 1997. 3. On December 8, 1997, an Agency Manager was loud and combative towards him. The Manager also threatened to take away appellant's GS-12 rating. 4. On December 10, 1997, appellant's verbal request for a transfer was denied while other requests for transfers made by female employees were granted. 5. On January 28, 1998, appellant learned that he was no longer designated as an Acting Supervisor. 6. Between December 1997-January 1998, appellant's Supervisor began to scrutinize his work more closely than other employees and made him correct minor errors that other employees were not required to make. In its final decision with regard to this complaint, the agency dismissed allegation 1 on the grounds of failure to state a claim and untimely EEO contact. Allegations 2-4 were also dismissed on the grounds of untimely EEO contact. The agency determined with regard to allegation 1 that this allegation constitutes an attempt to collaterally attack an agency determination regarding the propriety of appellant's grievance, and therefore is in the wrong forum. As for allegations 1-4, the agency determined that appellant's EEO contact of February 4, 1998, was more than 45 days after each of the alleged incidents occurred. The agency further determined that the alleged actions do not constitute a continuing violation. According to the agency, the incidents were discrete and isolated, and should have triggered appellant's awareness of the alleged discrimination. The agency stated that appellant did not show a nexus between the timely actions and the incidents at issue, or that these actions were taken by the same agency officials. On appeal, appellant contends that he was unaware of the 45-day limitation period for contacting an EEO Counselor. Appellant states that he has been with the agency since 1990, and there have been no meetings where EEO Counselors or management discussed the EEO process. With regard to allegation 2 of Agency No. 12-98-010, appellant states that any of the incidents by itself would not trigger awareness of gender bias, but rather the series of events caused him to suspect sex discrimination. Appellant claims that the EEO Office advised him that this complaint and his second complaint would allege a continuing violation. With regard to allegation 3 of Agency No. 12-98-010, appellant argues that the designation of this female employee as Acting Supervisor over him allowed that person to gain supervisory experience and diminished his stature in the office. Appellant claims that this female employee will have an unfair advantage over him for any supervisory positions that become available. As for allegation 1 of Agency No. 03-98-031, appellant contends that the grievance procedure was circumvented to ensure that a female employee would not be reprimanded. Appellant claims that the grievance procedure was circumvented with regard to his grievance but was not circumvented in grievances filed by female employees. According to appellant, allegations 1-4 of Agency No. 03-98-031 were discussed with the EEO Counselor during the counseling process for Agency No. 12-98-010, and he was advised by the EEO Counselor to wait until after the processing of the first complaint was completed before pursuing his second 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 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. 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). The Commission has held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id. The allegation that was dismissed by the agency on the grounds of untimely EEO contact in Agency No. 12-98-010 occurred over the period of January 1993 - August 1, 1997. Appellant did not initiate contact with an EEO Counselor until October 9, 1997, with regard to Agency No. 12-98-010, after the expiration of the 45-day limitation period. However, we note that appellant claims that he was unaware of the 45-day limitation period for contacting an EEO Counselor. The record does not contain any argument or evidence from the agency to establish that EEO posters setting forth the 45-day limitation period for contacting an EEO Counselor were posted at appellant's work facility in a conspicuous location. We find that a supplemental investigation is necessary in order to determine whether appellant had constructive notice of the time period for contacting an EEO Counselor. Accordingly, the agency's decision to dismiss allegation 2 of Agency No. 12-98-010 on the grounds of untimely EEO contact is VACATED. Allegation 2 is hereby REMANDED for further processing pursuant to the ORDER below. EEOC Regulation 29 C.F.R. §1614.107(a) provides, in relevant part, that an agency shall dismiss a complaint, or portion thereof, 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; §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). We find that the agency failed to properly define allegation 3 of Agency No. 12-98-010. While appellant identified a female employee, who he had previously identified as having discriminated against him, as having been chosen to serve as Acting Supervisor, appellant indicated that this detail would allow the female employee to gain supervisory experience, which he was denied, i.e., appellant disputed the agency's failure to detail him to the supervisory position. We find that this allegation states a claim as it is apparent from the record that appellant believes that he should have been appointed to serve as Acting Supervisor rather then the female employee at issue. The denial of this assignment to appellant adversely affected appellant with regard to a term, condition, or privilege of his employment. Accordingly, the agency's dismissal of allegation 3 of Agency No. 12-98-010 was improper and is REVERSED. Allegation 3 is hereby remanded for further processing in accordance with the Order below. With regard to allegation 1 of Agency No. 03-98-031, we find that this allegation fails to state a claim. Appellant is attempting to collaterally attack the handling of his grievance. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 24, 1993). Accordingly, the agency's dismissal of allegation 1 of Agency No. 03-98-031 on the grounds of failure to state a claim was proper and is AFFIRMED.<2> With regard to allegations 2-4 in Agency No. 03-98-031, we note that appellant maintains that the EEO Counselor advised him during the counseling of his first complaint to wait until the processing of the first complaint was completed before proceeding with the allegations in his second complaint. The agency has not submitted any argument or evidence to refute appellant's position. The incidents at issue occurred during the period of September 10, 1997 - December 10, 1997. We are unable to determine based on the record whether appellant timely contacted an EEO Counselor with regard to these allegations. Therefore, it is necessary that a supplemental investigation be conducted with regard to the issue of whether appellant raised the issues set forth in allegations 2-4 during the EEO counseling process associated with Agency No. 12-98-010. Accordingly, the agency's decision to dismiss allegations 2-4 on the grounds of untimely EEO contact is VACATED. Allegations 2-4 are hereby remanded for further processing pursuant to the Order below. ORDER The agency is ORDERED to take the following actions: The agency is ORDERED to conduct a supplemental investigation with regard to the issue of when appellant had actual or constructive notice of the time limit for contacting an EEO Counselor. The agency shall gather any evidence necessary to show whether and when appellant had actual knowledge or was put on constructive notice of the time limit for contacting an EEO Counselor. The agency shall make a determination as to whether appellant contacted an EEO Counselor in a timely manner after he had actual or constructive notice of the time limit for contacting an EEO Counselor. If an EEO poster was displayed at appellant's work facility during the relevant period, then the agency shall supplement the record with a copy of the EEO poster. 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 with regard to allegation 2 in Agency No. 12-98-010. The agency to process the remanded allegation 3 from Agency No. 12-98-010 in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations 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. The agency is ORDERED to conduct a supplemental investigation with regard to the issue of whether appellant raised allegations 2-4 of Agency No. 03-98-031 during the informal EEO counseling process of Agency NO. 12-98-010. The agency shall determine whether appellant was advised to delay proceeding with allegations 2-4 until the processing of the first complaint was completed. The agency shall supplement the record with statements from appellant and the relevant EEO Counselor as to these issues. The agency shall, within thirty (30) calendar days of the date this decision becomes final, issue a notice of processing or new final decision with regard to allegations 2-4 of Agency No. 03-98-031. A copy of the notice(s) of processing and/or new final agency decision(s) 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 (T0993) This decision affirms the agency's final decision 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 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. 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: August 24, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations1We are consolidating the appeal of the two final decisions and shall address both matters herein. 2In light of our dismissal of this allegation on the grounds of failure to state a claim, we need not address the agency's alternative grounds for dismissal.	[ "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)", "Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)", "Kleinman v. United States Postal Service, E...	[ -0.06835474818944931, 0.08548180758953094, -0.04126526787877083, -0.02477571740746498, 0.04311711713671684, 0.030092764645814896, 0.05468166619539261, 0.05951965972781181, 0.005738366395235062, 0.012907374650239944, 0.05597914755344391, 0.01668507046997547, -0.048017457127571106, -0.015489...

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.